Gender and the Court of Justice
Jo Shaw, Professor of European Law, University of Leeds
Academy of European Law, July 1999 Session Oxford University Press, 2000
I Introduction
This chapter seeks to uncover and explain the relevance of
the concept of ‘gender’ in the context of the role of the Court of
Justice within the legal and political order of the European Union. The Court
remains an important subject of analysis within the discipline of European Union
legal studies, both because of its institutional position within the system
of the EU as political and legal order reaching deep into each of the domestic
systems directly implicated in the EU, and because
the normative effects of its pronouncements on questions of gender have a unique
geographical spread. They are not only binding within the legal systems of the
fifteen current Member States, but influence also in strong ways both the legal
systems of the states belonging to the European Economic Area and those of the
candidate countries in the current Enlargement rounds which are tied to the
EU by association agreements mandating the preemptive introduction into the
domestic legal order of much of the acquis communautaire. Central to
much of the argument developed here is a dual vision of the Court as both ‘political’
and ‘legal’ institution within the EU system. It accepts the simultaneous
validity of legalist visions of the Court as operating within normatively
constraining systems of legal reasoning, argument and interpretation and subject
to conceptions of the proper judicial role within a constitutional system and
political visions of the Court as developing as well as responding to
the changing agendas inherent in the politics of the EU. This dual conception,
based on neatly fitting the Court of Justice into a system of integration/disintegration
and polity formation, nicely explains in the EU context the puzzle that ‘the
power of the judges as elaborators of law seems to exceed what their occasional
responsibilities as custodians of constitutionally entrenched individual rights
can explain.’ In other words, the legal and
political roles are both irremediably linked in a holistic conception of adjudication
within the wider context of a constitutional framework, a political order and
an economic market order. In a further step, the argument then seeks to place
‘gender’ into this system. Gender can have a disruptive power, challenging
the conceptual bases driving the two parallel agendas of a legal and
a political Court, such as ‘reason’, ‘constitution’ and
‘integration’. Underpinning the argument, are the concepts of ‘gender’
and ‘gender analysis’. It is important, in the first place, to distinguish
‘gender’ and ‘feminism’, especially in the context of legal
scholarship. It is widely agreed amongst scholars that feminist legal analysis
necessarily implies a broad commitment to progressive social change as the basis
for the analysis of law and socio-economic relations.
For example, as a political project, feminism is aware of the assymetrical nature
of the notions of ‘equality’ and ‘discrimination’, so far
as these notions are capable — as legal concepts — of remaining blind
to structurally based disadvantage and injustice especially for women rooted
in patriarchal capitalist societies. However, whilst the analysis which follows
in this chapter is broadly feminist in this sense, it does not take the step
of equating ‘gender’ with ‘woman’ alone, and engages instead
with a broader critical project of analysis around the production of identities
and subjectivities within and through law. Thus issues of difference based on
race, class, sexual orientation or other identity criteria can enter wherever
relevant into the analysis. There is no ‘essential woman’. Furthermore,
it is vital to note that in the strategic context of the European Union, its
legal order and, specifically, its Court of Justice, concepts of gender themselves
operate in a dynamic relationship with the shifting social, political, legal
and economic relations mediated through the integration process and the ongoing
multi-levelled process of EU polity-formation. In other words, they interact
with both the legal and political visions of the role of the Court
of Justice. Although definitions of the term ‘gender’ can vary dramatically,
two main usages of the term at the present time can be identified.
The first usage sees gender as a broadly social category standing in some form
of dichotomous relationship with sex. The sex/gender distinction in early ‘second
wave feminist’ work involved viewing gender as a ‘complex of socially
constructed characteristics, which are held to relate to the two sexes.’
More recent work has become increasingly uncomfortable with a crude nature/social
distinction implicit in the sex/gender distinction, and has challenged the suggestion
that sex itself is a pre-social essentialist category of nature. Quoting and
summarising the work of Judith Butler, Judith Squires shows how Butler argues
that:
‘gender ought not to be conceived merely as the
cultural inscription of meaning on a pregiven sex; gender must also designate
the very apparatus of production whereby the sexes themselves are established.
As a result, gender is not to culture as sex is to nature; gender is also
the discursive/cultural means by which ‘sexed nature’ or a ‘a
natural sex’ is produced and established as ‘prediscursive’,
‘prior to culture’…’
The second definition of gender suggests a more instrumentalist
use of the term as an intellectual conduit assisting and facilitating certain
types of analysis and theorising. Thus Squires suggests that gender is ‘a
category that was developed to explore what counts as ‘woman’ and
as ‘man’’ in feminist theory. Drawing in this chapter upon the
more pragmatic approach to the question which this suggests, I focus less upon
the identification and theorisation of a specific notion of gender, and the
consequent problematisation of the very possibility of a feminist politics through
the undermining of the commonsense category ‘woman’, and more upon
a limited and strategic ‘gender analysis’ and the use of gender as
an interpretative principle. It is important to ‘import gender’ into
EU law. This involves the endeavour to uncover the
(often hidden) ‘gendered character’ of aspects of the legal order,
legal actors and legal processes of the European Union. It is easy to consign
the ‘gendered approach’ to being ‘just’ another ‘strand’
of thinking, for example, about laws, institutions, processes, concepts, etc.
Two essential points need to be made here: ‘gendered’ approaches must
not be ghettoised as merely providing, for instance, useful insights in relation
to a limited range of social or political institutions (such as the family or
the household); on the contrary, they offer potentially useful perspectives
upon a whole range of varieties of institutional behaviour, based upon a set
of assumptions which envision relationships between institutional settings and
individual actors which are structured by connexity, associability and trust,
rather than by choice, preference-formation and maximisation, and the conceptual
separation, even cleavage, between actor and institution. Second, there is no
single universal approach to ‘importing gender’. In legal scholarship
as so often elsewhere, feminist analyses of any kind generally remain a form
of transgressive if not downright deviant scholarship, in that in any form they
challenge ‘the neutrality which has a central place in the framework of
modern thought and in the modern ideal of the rule of law.’
Indeed, feminist analyses tend to undermine ‘the idea of law as an autonomous
structure generating claims to truth which are insulated from political critique.
Feminism in common with other critical approaches in social theory, will always
be concerned to undermine, to expose as false, law’s pretended autonomy,
objectivity and neutrality’. In that sense, a feminist approach necessarily
imports a ‘politics’ of law. This scepticism about grand theory pairs
neatly, of course, with a general scepticism about ‘grand theories’
which pervades EU studies. Without abandonning altogether the endeavour to theorise,
many EU scholars suggest that there need to be a variety of different explanations
for both the existence and operation of the EU, working at different levels.
Within feminist work, moreover, ever growing scepticism about a single feminist
(legal or political) theory having any effective explanatory or predictive force
has also extended to the methodological field as well. Consequently, it is perhaps
wise to limit the claims of feminism in relation to the process of intellectual
enquiry: in relation to the nature of social scientific enquiry, it can effectively
challenge the objects of that enquiry; in relation to methods of enquiry, it
questions the underlying assumptions upon which methodologies proceed. Often
this has been revealed by the simple device of ‘asking the woman question’.
Thus the impact of much feminist work on law can be to expose the ways in which
a body of knowledge — i.e. legal doctrines and legal practices — is
constructed in a manner which tends to exclude the interests of the less
powerful, in particular women. On the other hand, only to ask ‘the
woman question’ ‘is to make men and masculinity the unnamed norm and
silence gender (in its fullest sense) as an analytic category.’ Asking
the woman question has the vital outcome of challenging the implicit primacy
of the ‘man question’ masquerading as the ‘person question’.
On the other hand,
‘this demand is itself now challenged by the proposal
that the more important task is to consider the complexities of gender questions
beyond the confines of the dichotomous construction of masculinity and femininity.’
So, to illustrate the possibilities of gender analysis in relation
to EU law, the importation of gender might include (amongst other approaches)
something as simple as the critique of doctrinal concepts such as equality and
non-discrimination and their instrumentalization by courts which operate within
the paradigm of a society, an economy and a polity in which women suffer structural
disadvantage as well as, from time to time, personal prejudice. Such an approach
would involve the attempt to show why ‘equality’ as it has been deployed
by the various institutions of the EU, and especially the Court of Justice,
should be construed in substantive rather than in formal terms.
Similarly, it might involve the deconstruction of sexual stereotypes and the
critique of sexism in law; or the challenging of
dominant ideologies about women, motherhood, family life, and the sexual division
of labour; or indeed the transgression of women’s
marginality in law, under law and as legal subjects, or assessments of the impact
of laws upon women’s (real) lives, including the attempt to ‘predict
the impact of policy’. Moreover, as many have
observed, so far as the object of most policy-making in relation to equal opportunities
for the sexes (and consequently much of the scholarly analysis commenting upon
those policies) has been women within the labour market or women potentially
within or seeking to be within the labour market (e.g. those receiving or wanting
training), EU law reinforces the disciplinary divides between work and market
on the one hand, and social exclusion on the other hand.
In order to bring the Court of Justice more closely into focus as the subject
of the analysis, the following sections outline the contexts in which the analysis
must be developed. The next section comprises a summary of important feminist
work on EU law. Sections III and IV set out the legal/policy and institutional
contexts. The policy context concentrates for the most part upon the legal framework
of equal opportunities law, and the primacy given to court-centred analyses
deploying and critiquing various concepts of equality, equal treatment and discrimination.
It also profiles the gradual shift in policy terms towards discourses and practices
of positive action and mainstreaming. In relation to the institutional context,
it is important to describe the nature of the institutional framework within
which arguments about equality have been developed. Put simply: what are the
prospects for a principle of substantive equality within institutions which
are ‘masculinist’ in terms of personnel and orientation? Returning
to the Court of Justice, Section V attempts to explain how the Court’s
work and its role within the system of EU law have been conventionally understood.
It highlights various interpretations of the Court’s role in terms of its
legal reasoning, and its self-understanding as an instrument of ‘integration’
within the EU legal order. In other words, it addresses the duality of the Court
as ‘legal’ and the Court as ‘political’ within the orthodox
frames given to both interpretations. As I will show, much analysis examines
the work of the Court in terms of its contribution to integration as a self-conscious
project of the European Union and/or in terms of its legitimacy as a judical
organ within a legal order which is not rooted within a nation state but which
is distinctively supranational in character. Gender is ‘imported’
into this analysis as a principle of interpretation, with a focus upon the pressure
points to be found within the system in relation to the Court’s legal and
political roles. Without wishing to dismiss the importance of such work, Section
VI envisions two alternative approaches to the process of legal reasoning which
are not specifically constrained by this way of framing the judicial legitimacy
debate. In similar terms it addresses both alternative approaches to the Court
as judicial institution with normative constraints and the Court as political
actor. In other words, it imports gender into justice and integration as a centrepoint
rather than a principle of interpretation. Section VII brings the chapter to
a conclusion. Sections V and VI are, therefore, the key sections expanding upon
the broad idea of ‘importing gender’ in the context of the dual vision
of the ‘legal’ and ‘political’ institutional status and
role of the Court of Justice. In keeping with the view that theoretical and
methodological pluralism is more helpful to the analysis than an attempt to
elaborate a single grand theory and dominant method explaining every dimension
of the relevance of gender within law, politics, society, culture and economy,
in its reconstructive endeavour Section VI adopts a broadly interrogatory approach.
It is also somewhat speculative in nature. It seeks to widen the debate about
the role of the Court within the EU system both in terms of its overall legitimacy
but also in terms of the evaluation of the concrete outputs from this judicial
system by suggesting different ways of conceiving of the ‘legal questions’
that come before the Court. In other words, one key question which it asks is
the following: what would happen if the fact situations in some of the key cases
which the Court has already decided were constructed not in terms of the disciplinary
categories of EC law as it stands at the present time where symetrical concepts
of equal treatment and non-discrimination are dominant, but in terms, for example,
of the policy approaches of ‘mainstreaming’ or ‘positive action’?
Building on the attempt to assess the institutional context in Section IV, it
also addresses the ‘gender of justice’ asking questions about the
relevance of the identity of the judges to processes of judicial reasoning.
II Gender, Feminism
and EU law
This section outlines some of the most important feminist
approaches to EU law within existing scholarship, highlighting areas where analyses
have focused specifically upon the Court of Justice as well as those analyses
which have concentrated upon the framework of the legal order without paying
specific attention to the constructive role of the Court of Justice. A distinction
is drawn between sectional, or subject-based, approaches and analyses which
attempt a more general approach. Feminist critique has remained, however, largely
peripheral or ‘bolt-on’ in the discipline
of European Union legal studies, although in that situation it hardly differs
from other fields of law.
A Feminist critiques of sex
equality law
As is well known, much feminist work on the EU has both begun
and ended with the most obvious engagement of EU law with the legal status of
women (and men) as actors within the market place for labour: equal treatment
law and policy and the slightly broader field of equal opportunities policy.
That is, feminist analyses have tended to concentrate in areas where the primary
legal instrument is that of discrimination, and the general principle most often
under consideration is that of equality. There has certainly been no shortage
of analyses of EU sex equality law of a predominantly liberal feminist character,
implicitly accepting the conventions and discourses of liberal legal institutions
as capable of delivering upon a promise of equality under or before the law,
although perhaps opening up some questions about the nature of the concepts
of equality deployed by the Court of Justice. The
task of much scholarship here has been to track the case law of the Court of
Justice, as it has followed a winding path between applying models of formal
and substantive equality to the resolution of concrete disputes about the scope
of the equal treatment rules. Such analyses often draw upon a wider argument
about sex equality law as a fundamental right, drawing strength from the gradual
(but yet incomplete) concretisation of the EU’s human rights policies.
Likewise, they may be linked to a more general analysis of the use of the equal
treatment principle elsewhere in EC law, and the growing range of functions
which that principle can play within the EU legal order. They often conclude
with calls for reforms of the existing law or improvements in effectiveness
of enforcement. There is also a strand of ‘pragmatically liberal’
work. This involves the analysis of rights and institutions under law in terms
of the possibility of limited gains through litigation strategies which accept
the liberal legal status quo, but this pragmatic liberalism is often
twinned with a more critical analysis of the weaknesses and limitations of equality
and, especially, discrimination as legal instruments in terms of a wider socio-economic
debate. This leads to an approach which combines some criticism of the Court
for certain inconsistencies in its approach and some failures of the legal and
institutional imagination, with a strong awareness of the ultimate limitations
of a single-track legal strategy in relation to the goal of equality
between the sexes in societies marked by difference in relation to race, ethnic
origin, class and economic power, and so on as well as sex. As we shall see
in more detail in the next section, in fact, scholarly critiques of sex discrimination
law in its current form have received high level recognition through significant
changes to the EC Treaty basis of gender equality rules through the medium of
the Treaty of Amsterdam. One of strengths of the women’s lobby — noted
for its relative success in capturing influence within the policy process
— is that it has drawn upon a powerful crescendo of arguments grounded
in feminist analyses of the equal treatment provisions to the effect that ‘simple’
equal treatment based upon a formal equality model is not enough to bring about
hoped for socio-economic transformations and that there are profound problems
with EU law’s deployment of the work/family divide, its location within
a system of ‘market law’, and the inevitable resistance in such a
system to all attempts to orient the argument towards the relevance of ‘care’
for the analysis of ‘equality’. Thus stepping beyond the limits of
a liberal feminist analysis, scholars have pointed to the weakness of all types
of equality-based analysis when it comes to confronting structural disadvantage
resulting from labour market or family/household structures. Here the line between
what is ‘discrimination’ and what is ‘personal lifestyle choice’
(e.g. in relation to childbearing and childraising) tends to collapse in an
equal treatment analysis, making it difficult to translate public policy choices
about the regulation of pregnancy, child birth and parenting into justiciable
concepts of ‘equality’. This leads to
a more radical critique of the Court’s case law, which goes beyond the
task of highlighting any inconsistencies in its use of concepts of equality.
One important task is challenging the ideologies upon which both the
sex equality law itself and, specifically, the approach of the Court of Justice
are based. McGlynn finds, for example, that the Court’s approach betrays
a strongly and perhaps disturbingly ‘maternalist’ orientation towards
issues of child care. Stychin, meanwhile, shows how the claim of Lisa Grant,
who sought a spousal benefit for her lesbian partner, was consistent with the
family orientation of the Court’s case law towards exclusive partnerships
of couples, even if the claim was disruptive to a classification of equality
in terms of sex rather than sexual orientation.
Equally important is the problematisation of the use of rights and rights discourse,
as the basis for the making of political claims within the legal system. Finally,
numerous analyses have highlighted the subject-based limitations of the EU’s
principle of equality: it fails to address many significant fields within which
women face systematic subordination within society, such as the domestic sphere
including issues of violence and care. Moreover,
while the feminist basis of much of the work described here certainly demands
as a pragmatic minimum a more substantive principle of equality wherever this
concept is in fact used, the logical conclusion of the argument often appears
to suggest that equality as such is not the issue. For if we argue that substantive
equality is context-specific, sensitive to difference as well as sameness, and
inimical to systems of gender stereotyping, then it becomes clear that the classic
legal tools of equal treatment law will be insufficient to solve the issues
of interpretation which arise. Increasingly, it becomes clear that ‘equality’
is here operating merely as an inadequate surrogate for other values such as
justice, fairness and individual autonomy, and it may be better to shift the
focus specifically onto those values themselves and to abandon the attempt to
ground the analysis on equality altogether. These are arguments which are common
to critiques of all systems of discrimination law, and which carry little specificity
in relation to the EU legal order’s sui generis supranationality.
The demands upon the Court, therefore, are demands similar to those placed on
any court adjudicating such questions.
B Beyond sex equality law
Outside the field of equal opportunities law, there have been
a number of important analyses of EU free movement law, citizenship, migration
and the principle of non-discrimination on the grounds of nationality.
Here the analysis must, of necessity, engage directly with the EU as the legal
basis for a single market for goods, services, capital and, especially, persons,
an Economic and Monetary Union and — increasingly — a putative Area
of Freedom, Security and Justice. In other words, the analysis of the gendered
effects of free movement law on women, for example, where there is a mistaken
tendency to assume that they are more often the objects of migration than its
active subjects, directly engages with the interrelationship between migration
and the legal transgression of national boundaries, along with the interaction
of national (e.g. welfare) and supranational (e.g. non-discrimination rights)
systems of law. Where feminist analysis of EU law has, thus far, been least
well developed has been in relation to the examination of EU law as system or
‘quasi-system’ of law, or in relation to the institutional analysis
of EU law. A comparison could be drawn with the analysis of international law.
Thus EU law has not so far been subjected to the type of analysis which led
Charlesworth, Chinkin and Wright to conclude in 1991 that international law
is ‘thoroughly gendered’. This would necessitate
an analysis which addresses both the foundation stones of the legal order, as
well as specific building blocks in terms of the fields and sub-fields of EU
law. One possible reason for this lack, and a weakness in feminist work hitherto
(shared with other ‘critical’ work on EU law), is that it has accepted
rather too easily the given categories of EU law as the basis for analysis,
which has made the transgression of boundaries between social and economic law
or between the free movement of persons and provisions on equality and non-discrimination
more difficult to achieve. Yet more lateral thinking seems urgently needed,
not only because the horizontal spread of EU activities and competence into
ever more fields of policy brings to the fore ever increasing numbers of possible
interrelationships between different fields of law, but also because of the
shift to policies of mainstreaming and positive action which is discussed in
the following section. Yet in one area of clear interrelationship — between
an emerging ‘constitutive’ policy field of non-discrimination law
based on the legal basis of Article 13 EC where new directives are under discussion
and the existing body of equal treatment law related to sex equality which has
been thus far limited to issues related to the labour market and some aspects
of the welfare state — there has been some evidence of uncertainty. Should
the existing framework of sex equality law (including the associated case law
of the Court of Justice) be treated as a pioneer and ideal to which new discrimination
laws should seek to live up, or will the generalisation of a non-discrimination
policy lead to the ‘dumbing down’ of the existing framework? Will
there be, for example, a decisive shift from the use of hard law measures to
soft law measures, thus moving away from the tradition — evidenced hitherto
— of according justiciable rights to the immediate beneficiaries of EC
sex equality law. Hitherto most general work has concentrated in particular
upon the market basis of the system. Examples include analyses of gender and
the internal market and of the ‘body politic(s)’ of EC law, the latter
attempting to view EC law using the prism of various established feminist perspectives
on law, specifically ‘law as sexist’, ‘law as masculine’
and ‘law as gendering’. The interaction between emerging international
markets for reproductive technology, gene technology and biotechnology on the
one hand and EC law’s tendency to commodify and assimilate more or less
any object to the market systems established under the Treaty freedoms on the
other offers some interesting insights into a new regulatory field for the body
and bodily identities. An equally fruitful line of analysis is suggested if
the lens is switched from the EU’s market properties to its complex interrelationship
with the state. For attempts to theorise the EU, the concept of state can be
problematic. The EU is both ‘near-state’ in its operation as a governance
system and antithetical to stateness, so far as it has a disruptive effect on
binary divisions between national law and international law, and between national
(domestic) politics and international (inter-state) politics. Equally, feminist
theory and feminism as practice has a complex and ambiguous relationship with
the state. For the state can be both patriarch and protector. The state confers
rights, and establishes systems of protection through law upon which claims
can be laid. The state’s legal and institutional processes offer the prospect
of reform, and incremental changes to a system which has historically disadvantaged
both women as a group, and especially groups of women who suffer multiple disadvantage
based, for example, upon ethnic origin or race. The EU as near-state and non-state,
therefore, adds another layer of complexity both to the attempt to disaggregate
gendered effects of constitutionalism and constitutive policies and to any attempt
to use EC law as a strategy for reform or resistance. To conclude, it would
appear that feminist work hitherto on the EU — whether or not explicitly
deploying an analytical category of gender as substance or method — has
not offered a full understanding of the significance of gender for the analysis
of the work of the Court of Justice, or the role of the Court of Justice as
institution within the EU system. Much work has been solely reactive, systematising
and footnoting the work of the judges using a variety of feminist approaches
in which the concept of equality in its formal and substantive versions has
been the dominant force. Traditional subject bases have placed limitations upon
the cross-cutting insights of much feminist scholarship. Technical legal analysis
structured around disciplines and subjects hides, of course, a vast array of
choices about alternative futures for society. We should not be constrained
by the disciplining force of defining legal categories such as ‘equality
law’ or ‘free movement law’ in assessing both the impact of case
law and possible alternative futures. It is to that end that I develop both
the interpretative tools of Section V and the variety of methodological approaches
suggested in Section VI. To reach that point, however, it is vital to set in
place a number of critical contexts.
III The Legal Framework
of Equal Opportunities Policy — and beyond
A Introduction
The premiss lying behind this section of the chapter concerns
the continuing centrality of what has often been termed the ‘women’s
policy’, especially in terms of its capacity
to set a broader ‘agenda for gender’ in the EU. While the previous
section has already outlined the importance of more general approaches to deploying
‘gender’ as a category of analysis in relation to EU law, and the
broad potential of feminist analyses of EU law, it remains true that as a distinctive
field of analysis, equal treatment or sex discrimination law has an important
cornerstone function. This is not simply because, as many commentators have
argued, equality — whatever its weaknesses as a tool of analysis and whatever
its limitations as defined in EC law — can and does make a difference when
enshrined in law. It certainly has a flagship function, and as frequently been
shown, problems arise in relation to the balance of EU law between sex equality
law as a presence, and race equality law as absence.
Hence the existence of sex equality law cannot be ignored. It also brings the
‘new European woman’ into focus, establishing the basis for arguments
about whether, for example, the internal market is good for women, or bad for
women. For all these reasons, the law on sex equality needs to be viewed as
the opening of the debate about gender and EU law, rather than as a closure.
Most importantly, however, without the pre-existing sex equality law and policy,
it is doubtful to what extent the EU institutions would have taken up the wider
international agenda of gender mainstreaming at the European level. It seems
unlikely that gender-mainstreaming would have achieved the status it has (albeit
that this status may continue be more rhetorical than real) without the existence
of the women’s policy. It is more, therefore,
than a mere backdrop to policy, but an important causal factor. Indeed, Pollack
and Hafner-Burton identify an important interaction between the European Parliament
and the Commission, where Commission President Santer resisted a push from the
Parliament’s Women’s Rights Committee in 1995 to have the equal opportunities
portfolio removed from Social Affairs Commissioner Padraig Flynn and given to
someone with a better record in that policy field, but repaid the Parliament
by promising that greater attention would be paid to this question. Without
the background legal framework for sex equality that particular committee might
very well never have been established, or at least certainly would not have
had the influence which it has in fact acquired within the system. Accordingly,
there has been, since 1995, a special ‘Commissioners’ Group’
on Equal Opportunities. As we shall see, in the pursuit of mainstreaming some
concrete steps have been taken to ensure that gender issues are taken into account
in all policy made or proposed by the Commission. Yet despite the shift in practical
emphasis to mainstreaming and positive action, it is interesting to note how
often policy measures continue to use the ‘equality before the law’
argument as the foundation stone for future developments. This is as evident
in the most recently proposed new equal opportunities action plan for 2001-2005
as it has been in the past.
B Equal opportunities: the legal
framework
The basic framework of EU equality law is well known, and
long established. It has been recently amended in significant ways, both through
the medium of Treaty amendments and because of the addition of some important
complementary legislative provisons. It does not provide a complete system of
equality law consisting of justiciable rights, procedures and remedies.
It provides a set of basic guarantees, enshrined in what began life as Article
119 EEC and is now Article 141 EC, along with a group of Directives requiring
implementation in national law. In particular, it is national law which supplies
the detailed procedures through which equality claims can be brought before
national courts by aggrieved individuals (or sometimes organisations) and, by
means of a reference for a preliminary ruling under Article 234 EC, before the
Court of Justice. Moreover, the Court of Justice has recently confirmed that
stricter national guarantees of sex equality — albeit that they might have
acquired a new interpretation as a consequence of the influence of EC law as
is the case with certain German constitutional provisions — continue to
co-exist and can be relied upon in circumstances where EC law does not provide
a remedy. Article 141 provides inter alia
for equal pay for men and women, and it has been supplemented by the following
Directives, adopted on the basis of what were Articles 100 and 235 EEC (renumbered
as Articles 95 and 308 EC):
- Directive 75/117 (equal pay and especially equal value);
- Directive 76/207 (equal treatment in employment);
- Directive 79/7 (equal treatment in social security);
- Directive 86/378 (equal treatment in occupational pensions);
this Directive was amended by Directive 96/97
in the light of the judgment of the Court of Justice in Barber
- Directive 86/613 (equal treatment for self-employed women).
The legal framework has been further developed in more recent
years through a number of additional measures based on a variety of legal bases
away from the direct question of sex equality. Directive 92/85 improving the
health and safety of workers who are pregnant or who have recently given birth
(the Pregnancy Directive) was adopted on the basis of what was then Article
118a EEC according a legislative competence in relation to health and safety
of workers (now Article 137 EC) and two further measures were originally adopted
during the course of the United Kingdom’s opt-out from the Maastricht social
policy provisions. In other words, they were adopted on the basis of the then
Social Policy Agreement, and involved not a ‘normal’ legislative process
(involving the Commission/Council/Parliament and sometimes the ECOSOC and the
Committee of the Regions), but a dialogue between employer and employee representatives
which produced an agreement then enacted by the Council into EU law on the basis
of a proposal from the Commission. These were Directive 96/34 on reconciling
family and working life (the Parental Leave Directive) and Directive 97/80 on
the burden of proof in cases of discrimination based on sex. They were later
extended by separate Directives to cover the United Kingdom. Both measures —
were they now to be adopted — would fall under the legislative competence
in Article 137 EC which brings the social-partner-based legislative procedures
of the Social Policy Agreement into the Treaty mainstream following the Treaty
of Amsterdam, combining them with qualified majority voting in the Council.
However, the burden of proof Directive could also be adopted using the new legal
basis in Article 141(3) EC allowing the Council to adopt — by a qualified
majority and in co-decision with the European Parliament — measures ‘to
ensure the application of the principle of equal opportunities and equal treatment
of men and women in matters of employment and occupation, including the
principle of equal pay…’ (emphasis added). This excludes the social
partners, but gives the European Parliament — with its formidable Women’s
Rights Committee — more say. Furthermore, after a long gestation period
and numerous earlier proposals from the Commission, measures on various aspects
of atypical work are now being adopted by the EU. The legislative processes
of the social dialogue have again been the key to progress. The Part Time Work
Directive, based on a Framework Agreement between the social partners was adopted
in 1997 and later extended to the UK, and is now covered by the Article 137
competence. A Framework Agreement on Fixed-Term Work was agreed in March 1999,
leading to a Commission proposal and the adoption of a Council Directive later
the same year. The factual relevance of such measures to women’s situation
in the labour market is hard to contest. Greater controversy surrounds the effects
of equalising the status of part time work and flexible working more generally
in terms of women’s future participation in the marketplace. The ‘hard’
secondary legal framework of directives is complemented and supplemented by
some soft law measures of variable effect and visibility. Notably, there are
measures in relation to child care, largely regarded as disappointing by commentators.
The European Parliament has turned to this area of its own initiative, adopting
a report and resolution on the situation of single mothers and one-parent families
calling for EU measures to be adopted. A Code of Practice on the equal pay principle
has received little publicity. In contrast, the Recommendation and Code of Practice
on sexual harassment have been regarded as more significant because of the link
— through the Equal Treatment Directive — to the construction of sexual
harassment as a (problematic) form of sex discrimination. Controversy has continued,
however, about the need for a binding legal instrument and about the possible
role of the social partners in negotiating a framework agreement. The recently
proposed fifth framework programme on equal opportunities would, according to
the Commission, include a commitment to bring forward a new proposal for a Directive
addressing, inter alia, the sexual harassment point directly. In terms
of developments in the primary legal framework for sex equality, the Treaty
of Amsterdam — which was agreed in 1997 and entered into force following
ratification in 1999 — was undoubtedly a watershed. It contained the most
significant amendments to the framework of rights, principles and legislative
competences since the original Treaty of Rome of 1957. Article 3 EC enshrines
the principle of gender mainstreaming into the Treaty and into all policies
and activities of the European Community. Article 136 brings into the formal
treaty framework the (declaratory) rights, including equality, contained in
the Community’s 1989 Charter of Fundamental Social Rights for Workers and,
as noted above, Article 137 establishes a broad basis for qualified majority
voting in the social policy arena. Amendments to Article 141 EC have strengthened
the case, in terms of legal principle, for positive action measures to benefit
the disadvantaged sex in fields of employment (most often women of course) without
conflicting with the equal treatment principle itself. Declaration 28, appended
to Article 141 EC, provides that ‘when adopting [positive action measures],
Member States should, in the first instance, aim at improving the situation
of women in working life’, offsetting the gender neutrality with which
the relevant provision of Article 141(4) EC is now drafted. This followed the
controversy generated by the Court’s judgment in the case of Kalanke,
where it appeared to cast doubt upon the possibility of any national or subnational
positive action measures pursued by public authorities not coming into conflict
with the formal principle of equality enshrined in the equal treatment directive.
Also generated by changes introduced in the Treaty of Amsterdam is a body of
proposals from the Commission based on the Article 13 non-discrimination legislative
competence. However, sex discrimination is excluded from both proposed measures
(although it is specifically included in Article 13): a Directive establishing
a general framework for equal treatment in employment and occupation and a Directive
specifically concerned with race discrimination in a wider range of areas. Finally,
a treaty basis has been established for the EU’s evolving employment policy
(Articles 125-130 EC) and, as we shall see, employment policy is at the forefront
of the mainstreaming debate. In addition to fostering the creation of an EU
level framework through legislative proposals and its animation of the social
dialogue, the Commission’s preoccupations have lain with the tasks of implementation
and enforcement. To this end, it has been assisted in the gathering and dissemination
of information not only by the national governments (which are subject to legal
obligations under the Treaty: Article 5 EEC, now Article 10 EC), but by its
own independent networks, such as the Expert Legal Group on the application
of European law on equal treatment between men and women, which has published
the Equality Quarterly News. In addition to seeking the implementation
by the Member States of additional international instruments on gender
equality, such as the ILO Convention No. 177 on homeworking, the Commission
has monitored the implementation of the key equality directives, and has been
prepared to embark upon legal action before the Court of Justice to ensure enforcement.
A good example would be the actions brought against the UK under Article 169
EEC (now Article 226 EC) in relation to both equal pay and equal treatment rules.
The very limited residual competence left to the Member States in many areas
of the equality field is well illustrated by the action brought against France
in relation to its prohibitions on women doing nightwork. Enforcement actions
are now concentrated on ensuring the effective implementation of the parental
leave directive and the pregnancy and maternity directive. The Commission’s
Third Annual Report on Equal Opportunities communicates the somewhat unnerving
information that the Commission was obliged to commence infringement proceedings
against every Member State to force them, as a minimum in terms of compliance,
to communicate to the Commission as watchdog their implementing measures in
respect of the 1996 directive amending the occupational pensions directive.
Article 141 is fully enforceable in national courts. It has direct effect.
Moreover, as is well known, the impact of the EU legislation in the form of
directives is not confined simply to requiring national legislatures to introduce
measures which conform to these provisions, or indeed to making national courts
seek to interpret national law in conformity with these provisions. Rather,
directives can also give separate and justiciable rights to individuals which
they can enforce in national courts, in accordance with the principles of national
procedural law, but which take precedence over any contradictory national provisions
(the principles of direct effect and supremacy).
The question of justiciable rights depends upon the interpretation — in
each case — of the provisions of the directive in question. However, directives
can only be enforced against the state, and not directly against other individuals.
The rights of individuals before national courts are buttressed by a very important
system of procedural guarantees. Remedies for breach of EC law must be no less
effective or extensive than national remedies in equivalent cases, and must
not operate such as to make it practically impossible for individuals to obtain
legal redress. These principles have been extensively interpreted by the Court
of Justice, in order, for example to force the removal of the upper limit on
compensation in UK sex discrimination cases. These rights are sometimes called
‘third generation rights’, and their interpretation and scope remains
a matter of some controversy in EC law at present, precisely because they involve
a considerable interference in national legal orders and the administration
of justice at national level. Given the significance of national courts in the
enforcement of EC sex equality law, it is important to emphasise the limitations
of the Court’s role in the context of individual actions brought before
national courts, and referred to the Court of Justice under the Article 234
EC preliminary ruling procedure. The Court does not actually decide the case.
It simply answers a set of questions posed by the national court, which the
latter deems to be necessary for the purposes of resolving an issue of EC law
which arises before it. The preliminary reference procedure does not guarantee
‘perfect’ interpretation or enforcement of EC law at national level.
It does not ensure that the Court of Justice will be asked the right questions.
It does not bring about by ‘force’ legislative changes at the national
level. However, the fact that the use of litigation strategies at national level
by interested parties such as trades unions or equality agencies seems set to
continue is evidenced by the readiness of the UK Trades Union Congress to take
legal advice immediately after the date for UK implementation as to whether
or not UK law is in line with the requirements of the Parental Leave Directive,
and to make clear its intention to consider litigation. It is perhaps misleading
to try to summarise the formidable and dense case law of the Court of Justice
in the area of sex equality law in the domain of employment since the groundbreaking
case of Defrenne II established the direct effect of Article 119 EEC
prospectively from the date of that judgment (April 6 1976).
Some comments will be of assistance, however, in constructing the arguments
which follow below. These will concentrate upon Article 234 references, as it
is in the context of these judgments that the Court of Justice has made its
most significant findings of principle about the scope and effect of the relevant
provisions of EU law. It is worthing noting that the patterns of preliminary
references from national courts have been extremely uneven. The early years
saw the Court of Justice being reasonably well supplied by references from the
UK courts, a pattern which has always bucked the trend of a generally low level
of reference-making by the UK courts. On the other hand, in figures up to date
by July 1999, Tesoka reports in total 31 preliminary references from
the UK Courts, 37 from the German Courts and just three from the French
Courts. After a rather slow beginning, which has
been attributed to an uncertain relationship between the (decentralised) lower
German labour courts and (centralised) Federal labour court, the German courts
have now clearly made a considerable impact in terms of numbers upon the case
law of the Court of Justice. Equally, there is no doubt that EU sex equality
law has had a profound effect upon the interpretation of equality guarantees
within the German domestic system. In addition, the Dutch, the Belgian, the
Danish, the Irish and — more recently the Swedish and the Austrian —
courts have supplied a small core of references. The point can be made somewhat
‘anecdotally’ (and somewhat arbitrarily) by means of a brief analysis
of some key case law in 1999 and 2000, which also has the advantage of highlighting
some of the continuing pressure points in this field. The first point to note
is an absence: after a rash of cases seeking interpretations of the Social Security
Directive as women have contested what they believed to be the discriminatory
(patriarchal?) effects of many aspects of the various national benefits and
welfare systems, there is very little activity in this domain at present. Crucially,
as we shall note again below, the key policy decision has already been made
by the Court of Justice to allow a relatively wide discretion to the Member
States as they modernise their welfare systems (both in view of the sex equality
principle and also because of the increasing demographic pressures which they
are experiencing), by allowing them to demonstrate a legitimate social policy
aim as justification for schemes which are indirectly discriminatory in terms
of effect upon women. Member States are also allowed to level down when eradicating
inequality. There were only two cases in 1999 on the Social Security Directive.
The first was a successful enforcement action under Article 226 EC brought by
the Commission against Greece, seeking a declaration from the Court that Greece
was infringing Article 141 EC and a number of provisions of the Equal Pay and
Social Security Directives by maintaining in force measure which laid down special
substantive conditions for married women employees which were not laid down
for married men employees. This illustrates the work that still needs to be
done by the Commission in policing the national systems as watchdog. The second
case was the well-publicised UK case of Taylor referred by the High Court,
which concerned the so-called ‘winter fuel’ Regulations. A man who
retired early aged 62, having paid social security contributions throughout
his working life, was denied a winter fuel payment which would have been paid
to a woman of the same age. The ‘discrimination’ was conceded by the
government. So Taylor was a case about the scope of the Social Security
Directive, allowing the Court to remind us that the scope is limited to benefits
which are part of a statutory scheme providing protection against one of the
risks list in Article 3(1), but that in this case it was correct to construe
this as a measuring protecting against the risk of old age (rather than protection
against lack of financial means as contended by the UK government). Hence, it
was covered by the directive. In addition, the Court found that the situation
was not covered by the derogation in Article 7(1)(a), which excludes the setting
of the pensionable age from the scope of the directive. Consequently, the UK
government took immediate remediating action during the winter of 1999-2000
to ensure compliance with the judgment. In view of the continuing profound earnings
gap between men and women, with the latest figures released by Eurostat continuing
to show women earning an EU average of 76.3% of the pay of men, with variations
between Greece (68%) and Denmark (88.1%), it is not surprising to find that
issues of equal pay remain a constant preoccupation in case law before the Court
of Justice. Two references from Austria raised interesting questions. The Wiener
case concerned the issue of whether two groups of workers (psychologists and
doctors employed as psychotherapists) performing what appeared to be identical
tasks, but with different training and/or professional qualifications, were
called upon to perform the ‘same work’. The Court concluded that they
did not, because they drew upon different knowledge and skills even though they
perform seemingly identical activities, and thus they cannot be regarded as
in a comparable situation for the purposes of the application of Article 141
EC. Those who are not doing the ‘same work’ will, therefore, need
to rely upon the more complex construction of a claim for equal pay for work
of equal value. More controversial was the ruling in the case of Gruber
that a woman who gave up work because she was experiencing difficulties in obtaining
childcare for her children was not entitled to a higher rate of termination
payment available under Austrian legislation. These
payments are made when employees leave for so-called ‘important reasons’,
including unfitness for work or risk from the employment to the employee’s
health or moral welfare, or other matters relating to working conditions in
the place of employment or to the conduct of the employer, all of which make
continued work impossible. According to the Court, they were reasons such that
‘no worker could be expected to maintain his employment relationship, even
during the period of notice normally provided for in the event of resignation’.
Childcare difficulties obviously did not fall into this category by analogy,
as far as the Court was concerned. On the other hand, the limits of ‘pay’
continue to creep outwards. In Krüger, the Court held that an end
of year bonus paid under a collective agreement is ‘pay’, and Article
141 applies even though the collective agreement in question excluded those
in ‘minor employment’ under a minimum weekly threshold of hours. A
‘Christmas bonus’ is also pay, even if paid voluntarily by the employer
and as an incentive for future work and loyalty, and was payable, the Court
held in Lewen, even to a woman who had been on maternity leave for part
of the year. An employer can, however, require that the employee is in active
employment when the bonus is actually paid. Moreover, in Seymour-Smith
the Court held that a judicial award of compensation for breach of the right
not to be unfairly dismissed falls within Article 141, as do the conditions
under which such awards are made. The case arose because the UK Conservative
Government in 1985 increased the qualifying period for compensation for unfair
dismissal from one year to two years. The applicants contended that this discriminated
indirectly against women, and brought a direct challenge to the relevant regulations
by means of an action for judicial review in the High Court. They were able
to adduce statistical evidence to demonstrate that on average over a period
of years form 1985, for every ten men who would be able to satisfy the qualifying
period if dismissed, only nine women would do. The issue was, therefore, one
of whether there was disparate impact. Interestingly, although the Court’s
(not unequivocal) judgment seems to indicate that the difference in the impact
on men and women might not mean that a ‘considerably smaller percentage
of women than men’ will qualify, in fact the House of Lords, on re-hearing
the case, concluded by a majority of three to two that it did. This question
was not the only one which the Court of Justice left to the national court to
decide, since it found that it was for the national court to determine at what
point in time any objective justification is to be measured (the date when the
measure was adopted, perhaps, or the date when the claim arose) and offered
the prospect that the measure could be objectively justified provided the Member
State could show that the means chosen were suitable for promoting the policy
asserted (promoting employment). The question of objective justification was
the ‘escape route’ which the majority of the House of Lords eventually
took, finding the Secretary of State to have satisfied the burden placed upon
him, thus avoiding the potentially highly disruptive finding that the measure
was unlawful as many similar claims were also pending before the UK courts.
Continuing the theme of ‘pay’, the Court concluded — in a case
brought by male workers at a Renault factory aggrieved at the award of a one-off
payment to women workers who took maternity leave — that such an award,
although covered by Article 141, was not precluded by this provision as it was
designed to offset the occupational disadvantages associated with pregnancy,
such as exclusion from promotion or performance related pay. Finally, in a group
of cases on issues of pay decided in early 2000,
the Court confirmed that the exclusion of part-timers from an occupational pension
scheme infringed Article 141 EC and was not a ‘pensions scenario’
covered by the temporal limitation in the case of Barber, where there
was reasonable ground for uncertainty about the scope of Member State discretion
to fix discriminatory retirement ages having regard to the network of provisions
and derogations surrounding this question. Turning now in conclusion to equal
treatment, the Court continues to receive references on the vexed issues raised
by pregnancy discrimination. In Mahlburg the applicant was refused appointment
to a post with a contract of indefinite duration (having previously been carrying
out such duties on a fixed term basis) because a provision of the relevant protective
German legislation prohibited employment in the area covered by the post (as
an operating theatre nurse) because of the risk of infection. The pregnant applicant,
meanwhile, was assigned to other duties, still on a fixed term contract. The
protective German legislation is justified by Article 2(3) of the Equal Treatment
Directive, as a derogation from the equal treatment principle covering the protection
of pregnant women and issues related to maternity. The Court had already considered
the scenario of a woman dismissed whilst pregnant, because of the effects of
a statutory prohibition on nightwork by pregnant women. The Court was happy
to extend this principle to the refusal to appoint, arguing that it is not permissible
for an employer to refuse to take on a pregnant woman on the ground that a prohibition
on employment arising on account of the pregnancy would prevent her being employed
from the outset and for the duration of the pregnancy in the post of unlimited
duration to be filled. Implicitly, there will be plenty of time afterwards.
The Court refused to countenance financial arguments on behalf of the employer.
The equal treatment provisions have also led to a review of British and German
restrictions on women in the armed forces. The applicant in Sirdar had
been a chef with the British Army for a number of years when she was informed
that she would be made redundant. She was initially offered the possibility
of a transfer to the Royal Marines, subject to passing an initial selection
board and following a commando training course, but the offer was withdrawn
when the authorities in the Royal Marines became aware of the fact that she
was a woman. There is a policy of excluding women from that regiment. Sirdar
was duly made redundant and brought an industrial tribunal action claiming sex
discrimination. As a matter of principle, the Court found decisions taken by
Member States regarding access to employment, vocational training and working
conditions in the armed forces for the purpose of ensuring combat effectiveness
do not fall outside the scope of EC law altogether. On the other hand, the UK
was able to invoke the derogation in Article 2(2) of the Equal Treatment Directive,
under which the sex of the worker may be a determining factor for a particular
occupational activity, on the grounds of the specific organisation of the Royal
Marines as the first line of attack, in which chefs as well as other troops
are required to serve as front-line commandos. In Kreil the blanket ban
under German law on women from all military posts involving the use of arms
was held to be contrary to the Equal Treatment Directive, and so the refusal
to employ Kreil in the army’s electronic maintenance service was illegal.
This review has necessarily been very selective in its coverage of the breadth
and depth of the Court’s case law on the sex equality provisions. Some
issues will be picked up again in Section V, which attempts to interpret the
role of the Court as legal and as political institution. Suffice
it to say, in the meantime, that the richness of the case law for 1999 and early
2000 demonstrates the continuing vitality of this field in terms of legal practice
and legal evolution. As a body of case law, sex equality law has dominated the
gender issue.
C Beyond sex equality: an ‘agenda
for gender’
Returning now to the broader ‘agenda for gender’
which — it was argued at the outset of this section — is in fact derived
from the foundational fields of ‘women’s policy’ and sex equality
law, it can be seen that a wider range of concerns has been visible for many
years in the Commission’s programmes, reports and sponsoring and fostering
of research and information and publicity activities such as conferences and
workshops. Since 1996, the Commission has been publishing Annual Reports on
Equal Opportunities by the Commission. Looking further
backwards, three action programmes on equal opportunities for women and men
have now been completed, a fourth is in its concluding stages and a fifth is
in the process of being set up. There is often a tendency to decry the importance
and constructive effects of the programmatic endeavours so beloved of the Commission,
but there seems little doubt that the programmes have been a contributory factor
in the diffusion of equal opportunities policies into the wider framework of
Commission and Community activities more generally. Historically, policy-making
away from the equal opportunities in employment field has been largely limited
to soft law, of which the 1996 Council Recommendation on the balanced participation
of women and men in the decision-making process
or the 1999 Council Resolution on women and science are good examples. Exceptions
are the measures taken to combat violence against women and trafficking in women.
In December 1999, a Council and Parliament Decision adopted the DAPHNE Programme
on measures, including financial support for initiatives, to combat violence
against women, building on the earlier, soft, DAPHNE initiative. These are in
the nature of ‘positive action’ measures, which can be seen as an
interim step towards mainstreaming in which ‘the emphasis shifts from equality
of access to creating conditions more likely to result in equality of outcome.’
They complement well established funding programmes in the field of education
and training and in relation to the use of the structural funds to support women’s
employment and training. However, with the move to ‘mainstreaming’
there has been a shift from specific programmes for women to mainstreaming equal
opportunities into general programmes, complete with targetted ‘initiatives’
for women and other disadvantaged minorities. ‘Mainstreaming’ has
now superceded notions of ‘equal opportunities’ as the organising
concept for policy in the gender field. It dominates the structure and content
of recent Equal Opportunities Annual Reports from the Commission. For some,
this change is viewed optimistically as evidence of a broader agenda, linked
to the success of social movements lobbying around this question at national
and EU level. For others, the change is no more than a rhetorical shift within
a consistent pattern of equality policy which is ‘virtual’ not ‘real’.
According to the Commission, mainstreaming is now both a policy goal in itself
and ‘a strategy for achieving change in all other targeted policy.’
That strategy proceeds, according to the Commission, through
‘the systematic integration of the respective situations,
priorities and needs of women in all policies and with a view to promoting
equality between women and men and mobilising all general policies and measures
specifically for the purpose of achieving equality by actively and openly
taking into account, at the planning stage, their effects on the respective
situation of women and men in implementation, monitoring and evaluation.’
The attempt to make gender mainstreaming something close to comprehensive
within the Commission itself has resulted in patchy outcomes. Commission President
Romano Prodi continued the Commissioner’s Group on Equal Opportunities
chaired by Employment and Social Affairs Commissioner Anna Diamantopoulou. The
Commission has produced guidelines and checklists for officials and in every
Directorate General there is at least one official with responsibility for gender
mainstreaming. The most obvious progress has been in two areas: employment policy
and development aid policy. The example of employment policy demonstrates a
positive conjunction of a new opportunity structure for policy-making opened
as a result of the new Employment Policy title in the EC Treaty after Amsterdam,
and in particular its preemptive implementation by the Member States and the
institutions after the Luxembourg Summit, along with the opening of the gender
mainstreaming debate. The result sees equal opportunities as one pillar of the
employment policy and gender mainstreaming as a Guideline adopted by the Council
on national employment policies. The (strongly worded) gender Guideline was
inserted in the 1999 versions of the Guidelines because of strong support from
the British and Austrian Presidencies of the Council in 1998, and then retained
for 2000. The framework for employment policy is now much more than the so-called
‘ritualistic denunciations’ of the evils of unemployment at periodic
summits and European Council meetings highlighted by Dinan. Member States must
prepare national action plans (NAPs) and the Commission can scrutinize and even
issue specific recommendations or criticisms directed at individual Member States
or the Member States as a whole. Pollack and Hafner-Burton highlight changes
in NAPs which can directly be attributed to Commission pressure. The acid test
would then concern whether the NAPs result in real policy changes at national
level. This is particularly important since the relevance of the gender issue
here is established by hard factual evidence regarding the higher rates of unemployment
amongst women, especially younger women, and the training and skills deficits
suffered by women. In the area of development policy, the legislative process
has given rise initially to discursive measures and latterly to a Regulation
specifically on the question of integrating gender. These measures have been
viewed an interesting example of ‘norm spread’ within the EU based
on norm negotiations within Council committees, amongst other fora. The shift
towards gender mainstreaming and its possible relevance in terms of feminist
approaches to the EU and its legal order has yet to be investigated in full.
If legal frameworks are, on average, ‘softer’ and more generalist,
what does that mean? Will it imply, in the long term, a watering down of already
relatively weak equality concepts enshrined in the equality directives? Or might
it imply a strengthening of these concepts at least in terms of substantive
meaning, but a consequential weakening of enforcement and structures of enforceability?
Alternatively, should the institutional adoption of an agenda of mainstreaming
be seen as the ‘framing out’ of the disruptive and radical aspects
of feminism? These questions, as yet unanswered, provide an important context
as we move towards linking the issue of gender and the Court of Justice.
IV The institutional
context
Charlesworth, Chinkin and Wright argue that the organizational
structure of international law — by excluding women in large measure from
access to decision-making — contributes to the gendered nature of international
law. Right up to the present time, most of the institutions of the European
Union have had a very poor record in relation to the participation and employment
of women. Since the 1996 Council Recommendation on balanced participation of
women and men in the decision-making process, however, consistent efforts have
been made to scrutinize gender balance not only in the EU institutions themselves,
but also within the political and legal institutions of the Member States. A
recent Report from the Commission on the implementation of the Council Recommendation,
which can usefully be coupled with evidence from the Annual Reports of the Commission
on Equal Opportunities, frames the EU and national initiatives within the wider
international context of the Beijing Platform for action and addresses ‘progress’
in relation to nine indicators, including representation in different levels
of the legislature at EU, national, subnational and local level, representation
in governments and executives, and representation amongst the senior judiciary.
In relation to the Court of Justice there have recently been some small but
significant changes. The Commission’s Equal Opportunities Annual Reports
shift between 1998 and 1999; in 1998 it is reported that there is ‘no progress’
in the Court of Justice, but in 1999 the Commission notes with obvious pleasure
that for the first time in history a woman judge was appointed to the Court.
The new Irish judge, Fidelma O’Kelly Macken, appointed
in October 1999, joins the only woman ever previously appointed to the Court
— Advocate General Simone Rozès (1981-1985) — as a ‘first’.
There are two women judges at the Court of First Instance, perhaps predictably
the Finnish and Swedish judges appointed on the accession of those states to
the EU in 1995. This pattern of very limited female participation in the Union’s
judicature reflects the vertical segregation of women within the judiciaries
of most of the Member States (especially where entry to the judiciary is by
competition): although women, as a percentage of the judiciary as a whole, are
frequently better represented than in other professions, they are very poorly
represented in the highest positions. This implies
difficulties with national promotion procedures. An appointment to the Court
of Justice represents a very senior appointment which by definition excludes
most women judges at national level. However, of course, appointments to the
Court of Justice do not have to be judges at national level, but can be qualified
by virtue of their work in other ways (as academics, as national officials or
as practising lawyers). The further point about the national judiciaries concerns
the role of national courts as ‘Community courts’ so far as they can
and do apply EC law in the context of national proceedings. Here horizontal
segregation and the ghettoisation of many women judges in ‘soft’ issues
such as family law has an impact upon their interaction with EC law. Only 9%
of the judges in German tax courts — whence many German cases referred
to the Court of Justice in practice come — are women. Turning the spotlight
to the internal workings of the Court of Justice, what little work has
been done on the référendaires or legal secretaries at
the Court of Justice has not addressed the gender issue in any depth, either
in terms of numbers or attitudes towards the Court of Justice and its work.
Figures are confined to an overall percentage up to 1994: 14.6% over the years
had been women, and at the time when the research was completed in 1994, ten
out of the fifty-six référendaires were women (18%), with seven
out of twenty-four at the Court of First Instance (29%). This was prior to the
accession of Sweden and Finland, which might well have increased the percentages.
Interestingly in terms of perception and visibility of women’s presence,
the interviewee respondents commented that one-third of the legal secretaries
at the Court were women, thus in their own minds doubling their actual representation.
Elsewhere amongst the EU institutions, five of the members of the present and
of the previous Commission are women. Commissioner Diamantopoulou is a Vice-President
of the Commission. The Commission is committed to ensuring a more balanced representation
throughout committees, expert groups and working groups, etc. A 1998 Regulation
integrates equality clauses into the recruitment procedures and status of officials.
The numbers of female members of the Council is, of course, constantly shifting
and therefore difficult to track, but within the national governments the Commission’s
report notes a significant increase in female representation which is higher
than in relation to national parliaments. In the European Parliament, the 1999
elections brought the percentage of women members to 30.2%, although representation
is spread unevenly across the Member States with highs in Denmark and Finland
(both 43.8%) and lows in Greece (16% and steady) and Italy (11.5% and dropping).
Thirty per cent is, in any event, much higher than the average female representation
in the national parliaments which stood at just 18.6% in 1999. In the European
Parliament elections in 1999 the use of the list system and proportional representation
made a difference in the UK (an increase from 18.4% to 24.1%). In 1998, the
ECOSOC had 22% women members holding a mandate from 1998-2000, and for the second
term of the Committee of the Regions female participation rose from 9.9% (1994-1998)
to 14.9% (1998-2002). There are two female members of the 15 person Court of
Auditors. These figures do not give a full enough picture to draw comprehensive
conclusions about the ‘gendered’ nature of the EU in institutional
terms. They demonstrate a trend of change, at least, but not a definitive shift
to feminised institutions. Significant differences amongst the Member States
are charted, notably between the southern Member States and the northern European
Member States which have pursued longer term equal opportunities iniatives and
some of which now operate quota systems in some areas of political life. Certainly,
these trends assist — as with the previous sections — in setting the
stage for the attempt, through this Chapter, to interpret and interrogate the
work of the Court of Justice as an institution of the European Union.
V Interpreting the
Court of Justice
A Introduction
To enquire into the Court of Justice’s work in relation
to issues of gender would appear, at first sight, to be a rather banal question.
Surely the Court will simply apply its general mandate under Article 220 EC
‘to ensure that in the interpretation and application of [the] Treaty,
the law is observed’? Moreover, as the review of the policy framework in
Section III has shown, this seems likely to be limited in terms of scope to
interpreting and applying the law on equal treatment of the sexes, as and when
required to do under its Article 226 enforcement jurisdiction and its Article
234 preliminary ruling jurisdiction. It is in that context, one must begin by
assuming, that the constitutional limits of the jurisdiction of the Court will
operate. Bearing in mind the limited nature of the scope of EU law and of Community
competence under the EC Treaty, it is not immediately apparent how else gender
— as a principle of social organisation and as the basis for a critique
of social order — could possibly be relevant in a legal sense to
what the Court actually does. For adjudication only occurs if there is litigation,
and presupposes that there must be some legal issue which implicates gender
before there can be any manner of justiciable dispute. Section VI examines the
latter issue, juxtaposing directly the broader challenge of gender with the
Court’s work under the Treaties. It attempts a (speculative) gender-centred
analysis in order to reflect upon aspects of the Court’s work inside and
outside the field of sex equality law, adopting an interrogative approach. This
section, however, works outwards from the first assumption of a limited role
for the Court of Justice, examining and reinterpreting the interpretative work
of the Court of Justice in relation to the sex equality provisions, placing
it, in turn, in its legal and political contexts. What has been said thus far
would seem to implicate what Weiler calls the ‘classical’ approach
to understanding and evaluating the role of the Court of Justice and of the
judicial process in the evolution of the EU and the European integration process.
It involves the laying down of doctrine, that is, a normative framework purporting
to govern certain fundamental constitutional issues and certain material socio-economic
relationships, in the language of binding rules. Arnull’s work on the Court
of Justice, which includes an exposition of the points of pressure in relation
to equal treatment case law, seems to sit comfortably within the classical paradigm.
At least, that is the self-portrait offered by the author in his preface to
his recent book on the Court. In fact, it would
be better to describe it as a ‘classical-plus’ or ‘doctrine-plus’
approach. For in a more wide-ranging final chapter to his book, Arnull seeks
to examine ‘the extent to which the approach of the Court to its task has
evolved over time and to speculate about the causes of such variation,’
although he does not develop a single hypothesis which can be used to explain
why the Court might be sensitive to its political environment. Rather,
he characterises the Court, in conclusion as neither activist nor passive but
as ‘radically conservative’ in its interaction with its environment.
In other words, he implicitly accepts the thesis of the dual legal and political
role of the Court of Justice, and links the argument to contentions about the
legitimacy of the Court of Justice. What the approach begins to bring
out, however, is the structuring force of the Court’s position within the
EU system. To reveal this point more clearly, the analysis in this section will
chart the boundaries of a Court positioned between legal and political understandings
of integration in its fullest sense (including ‘disintegration’ in
certain circumstances), while at the same time highlighting
the limits of such an approach, thus opening the conceptual space for a critical
focus through the analysis of ‘gender’. The cornerstone of this section
must be, therefore, understandings of the role of the Court within the paradigm
established by the legal and political boundaries of the process of integration.
In other words, it deals with a currency in which the primary functionality
of legal order of the EU emerges in relation to its contribution to the many
and varied processes of integration (and sometimes disintegration).
B The Court as legal institution
The first task is thus to excavate some understandings of
the role of the Court as a legal institution, dealing specifically with
its quality of judgment as well as the choices of the judge. The
main currency of such an expedition within a liberal legal order must necessarily
be the belief that the judge can and does in some sense embody ‘reason
in law’. Dominant traditions of positivist legal analysis adhere to the
notion that there is a specific and autonomous quality to legal reasoning and
legal discourse which separates it from, for example, ethical reasoning or discourse.
Breaking down the process and content of legal reasoning into its composite
elements, we find in turn some more specific questions about the permissible
scope of the interpretation of legal texts, the role of ‘rule following’
and precedent as opposed to reasoning from first principle according to a notion
of justice or analogical reasoning, the extent to which judgment also
necessitates justification, persuasion or advocacy in the form of extended reasoned
argument, and the role of political, economic, social and cultural context in
supplying the ‘purposes’ for which laws exist or have been made. Closely
linked questions are the extent to which the judge herself is ascribed authority
within the wider political and constitutional system (and in the EU context
the extent to which the rulings of the Court of Justice are in fact followed
at national level or are complied with by the Member States who remain the formal
‘Masters of the Treaty’) and the relationship between the different
‘powers’ of the state and the extent to which judges are subservient
to democratic legitimacy in the form of legislative texts or constitutional
legitimacy in the form of a higher law (and the specific issues which these
questions raise at the EU level which does not have a conventionally elected
legislature or a conventional executive produced by party politics which dominates
that legislature). Although Unger rejects the specificity of legal reasoning
as such, he nonetheless supplies a definition of the legal role of a
court which can function as a useful template to examine the role of the Court
of Justice:
‘the heart of most legal analysis in an adjudicative
setting should and must be the context-oriented practice of analogical reasoning
in the interpretation of statutes and past judicial decisions. This analogical
reasoning must be guided by the attribution of purpose to the interpreted
materials, an attribution that can often remain implicit in situations of
settled usage but that must be brought out into the open whenever meanings
and goals are contested.’
This statement reminds us that while it is useful to deploy a
distinction between the Court as legal and as political institution,
the two roles are fundamentally linked wherever there is societal contestation.
This occurs quite frequently in relation to the interpretation of EU law, and
it is clear that this could place special responsibilities upon the Court of
Justice. Arnull defends the view that the Court’s approach to legal interpretation
is not especially unorthodox, having regarding to the rules of international
law, including the Vienna Convention on the Law of Treaties, which allows interpretations
in the light of ‘object and purpose’. This is a defence against a
charge of undue activism, and the suggestion that the Court goes outside
the boundaries of permissible interpretation by ignoring the plain words of
relevant provisions. Equally, in relation to its
interpretations of the sex equality provisions, he defends the actions of the
Court of Justice against a charge that it has been too passive and accepting
of unduly limited interpretations of the scope of those provisions. He would
deny the claim by Ellis that the Court of Justice in the 1990s ‘often appears
to have lost sight of the objectives of the legislation and to be operating
as a drag on the system’. What, briefly, is the basis for such divergent
views of the legal role of the Court of Justice in relation to the sex
equality provisions which were described in Section III? Is it right to suggest
that the Court of Justice fails fully to exploit the available interpretative
space? Do all the commentators still agree that the Court of Justice
remains a key actor within the framework of EC sex equality law, as was always
the traditional view despite scepticism on some parts? Is it the use of gender
as an interpretative principle which pushes commentators towards a critical
stance on the work of the Court and indeed leads to in turn to the uncovering
of gendered frameworks and structures? Arnull asserts that the Court has been
just as activist and ‘purposive’ as it could reasonably have been
in the development of sex equality law, pointing to the decision in Defrenne
II establishing the crucial principle of direct effect, the wide definition
which the Court has given to concepts such as ‘pay’,
and most — if not all — aspects of the principle of indirect discrimination
which it has developed. But if, in essence, the complaint of those who criticise
the Court comes down to disappointment that changes in the law have not been
matched by societal change and ‘real equality’ for women, then this
can hardly be laid at the door of the Court which is only responsible for giving
effect ‘to the policy choices made by the authors of the applicable Community
rules’. The suggestion is there that disappointment arises because the
expectations which were placed upon the Court were too high and completely unrealistic.
Gender is deeply embedded in societal structures, and law is viewed as incapable
of addressing these questions, with judicial institutions lacking most, if not
all, agency in this regard. On this view, the only ‘judicial politics’
which really matter in this field are those surrounding the temporal limitations
which it laid down in its decisions in Defrenne II and the leading pensions
case of Barber, thus restricting access to equal pay, and not in fact
the vagaries of the Court’s demarcation of the concept of equality. Those
actions have received considerable criticism from those who believe the Court
has been too activist in favour of promoting the integration of the EU and usurping
the role of the legislature. The crux of the issue will, on that view, be debating
whether the Court is (a) correct to invoke the principle of legal certainty
to allow it to impose temporal limitations upon its rulings in exceptional circumstances
and (b) correct to do so in the particular cases of Defrenne and Barber.
If the Defrenne and Barber temporal limitations were attempts
to accommodate or even appease the interests of Member States, moves on the
part of the Court of Justice which Arnull is somewhat reluctant to concede on
the facts while remaining enthusiastic about the principle, it is interesting
to speculate as to how he might react to the most recent group of cases on this
question, where the Court of Justice has deliberately ‘limited the limitation’,
having regard the specific sensitivities of German constitutional law. In Schröder
and the related cases on access to occupational pension schemes for part-time
workers, one of the questions before the Court of Justice concerned the effects
in national law of temporal limitations which it has imposed upon equality rights
under EU law and of other limitations of scope such as its conclusion that the
right of part-time workers not to be excluded from occupational pension schemes
developed as a construction of indirect discrimination against part-time workers
who are primarily female does not as such imply the right to a pension. On the
Court’s construction, all that is required of national law under EU law
is that part-time workers may join pension schemes, but cannot claim the right
to a pension unless they have paid the relevant contributions. This would mean,
for example, buying back the lost years. This operates as a form of effective
temporal limitation, since such rights are only in truth likely to assist part-time
workers now embarking upon the process of buying their pension. Schröder
and its sister cases challenged the much criticised parsimony of the Court’s
rulings, by reference to the legal situation now applicable in Germany
(partly as a result of the influence of EU law as well as internal political
developments in which sex equality issues have been brought to the fore) which
allows all part-time workers retroactive membership of occupational pension
schemes and access to a pension. Avoiding directly addressing the question of
priority between provisions of EU law and the German Constitution, Article 3
of which guarantees equality and is the present basis for the rights of part-time
workers in national law, the Court concluded that there was nothing in
either the temporal limitations which the Court has established or in the scope
of Article 141 as it has been interpreted which precludes such generosity on
the part of national law. In its reasoning the Court invoked the fundamental
rights status of Article 141, a technique which it uses in some, but not all,
of its cases to add a deeper seam of moral force to its argument.
Yet, the impression remains on reading the cases that however powerfully worded
the Court’s invocation of human rights, it is in truth a rendering of the
politics of gender into a politics of subsidiarity or sovereignty, once again
to appease national sensitivities. On this occasion, the hidden subtext of the
Court’s judgment is not a deeprooted concern for particular constructions
of the status of equality as a right but rather the longstanding tensions between
the Court of Justice and the German courts on the question of fundamental rights.
In effect, the German courts have ‘forced’ this interpretation by
invoking the national fundamental rights guarantees in the Constitution and
by standing in the formidable shadow of the German Federal Constitutional Court
with its famed doubts about the capacity of the Court of Justice to determine
the scope of Community competence and the effects of EC law. A more imaginative
blending of a defence of the Court’s limitations as a ‘judge of equality’
with an awareness of the need for a new policy solutions comes from Mancini
and O’Leary who paint a picture of the Court ‘struggling to deal with
the constraints imposed by Article 119 and the Equality Directives while attempting
to live up to the standards of rights protection which it has set itself.’
As they point out and as we have just seen, the Court has, from time to time,
resorted to ‘alternative means to vindicate the rights of complainants,
most noatably with reference to the general princples of law and fundamental
rights which it is bound to protect’, and ‘the results have sometimes
been spectacular’. The implication of Mancini and O’Leary’s argument
is that this is for reasons of the politics of gender, not the politics of sovereignty.
Perhaps the cause célèbre for the invocation of fundamental
rights arguments is the case of P v. S and Cornwall County Council
in which ‘sex’ equality was extended to cover discrimination against
a transsexual dismissed after gender re-assignment as a form of discrimination
based ‘essentially if not exclusively’ on sex, using a fundamental
rights argument. Yet two years later, the Court took a markedly different approach
in Grant. In dismissing a claim for a spousal benefit for a lesbian partner,
the Court used a strict comparison basis for determining whether there had been
equal treatment, determining that the relevant comparator was a man with a male
partner, who would have been likewise denied the spousal benefit, not the man
with a female partner who preceded Lisa Grant in her employment. Mancini and
O’Leary comment on this disappointment: ‘Expecting the Court always
to rule with reference to this technique and in a fashion which could be regarded
as an expansion of the frontiers of Community law is, however, unrealistic.’
Rather than consigning the issues raised by material disadvantage to an arena
outwith the range of ‘law’ as such, Mancini and O’Leary call
for the use of ‘other means to protect disadvantaged groups, while avoiding
the marginalisation which those opposed to special protection most fear.’
Some evidence of this can be seen from recent changes in the policy context
charted in Section III such as shift towards ‘mainstreaming’ and recent
legal developments in the protection of atypical workers and reconciliation
of family life and work such as the Parental Leave Directive, limited as some
of these initiatives might so far be. For critics of the Court, meanwhile, at
the heart of the question remains the concept of equality, and all that flows
from this in terms of functions, principles, standards and indeed remedies.
Some lines of the feminist argument were already sketched out in Section II.
It is right to distinguish criticisms of the Court and criticisms of the functions
and possibilities of a legal framework based upon concepts of discrimination
and equal treatment within a liberal legal system and a capitalist mixed market
economy. Criticisms which have been directed at the Court come from a variety
of different positions and concern its failure fully to develop the ‘human
rights’ dimension of equality highlighted in the previous paragraphs,
the accusation that its approach to family relationships reflects less an unwillingness
to interfere in the private sphere (its ostensible public position) and more
a certain type of (outdated) ‘maternalist’ ideology in relation to
the care of children, its importation of too many market-based criteria into
the concept of justification for indirect discrimination, and its deference
to Member State interests and the policy aims of welfare states in circumstances
where Member States are called upon to justify indirectly discriminatory social
security schemes. But above all, there has been
a sense of impatience amongst critics that the Court has flirted with a more
‘substantive’ concept of equality as underlying its interpretations
of the legal instrument of discrimination, but has failed to be consistent.
These seem to be arguments about quality of judgment as much as about
judicial choice when faced with the ‘contested meanings and goals’
highlighted by Unger. Here the Court has a special responsibility to articulate
clearly the grounding of its judgment in precedent, analogy or principle. Many
of these issues were thrown up by the controversy surrounding the Court’s
case law on positive actions schemes at national level supporting the employment
or promotion of ‘the underrepresented sex’ (i.e. typically women who
have faced greater historical and longterm disadvantage than men in the labour
market) at the expense inevitably of the ‘overrepresented sex’.
This was already briefly referred to above. Until the agreement upon the Treaty
of Amsterdam the relevant legal framework for positive action was limited to
Article 2(4) of the Equal Treatment Directive which provides that the Directive
shall be ‘without prejudice to measures which promote equal opportunity
for men and women, in particular by removing existing inequalities which affect
women’s opportunities.’ An essentially exhortatory Council Recommendation
was agreed in 1984 calling on the Member States to adopt positive action policies
designed to eliminate existing inequalities affecting women in working life
and to promote a better balance between the sexes in employment. What should
be the relationship between the EU-level guarantee of equality contained in
the directive (Article 2(1)), read in the light of the saving clause in Article
2(4), on the one hand, and the national and regional legislative frameworks
which seek to establish, for example, quota systems to promote women’s
employment in areas where they have been underrepresented, which have been developed
in accordance with the encouragement provided in the Council Recommendation?
These are particularly common in the Germany, where each of the Länder
has some form of legislative framework for using the Land public service
as a laboratory for equal opportunities. The scope was clear for conflict between
programmes for substantive equality agreed on a majoritarian basis at national
or regional level, and whatever construction the Court chooses to place upon
the EU level equality guarantee. From the perspective of those campaigning for
affirmative action programmes, the worst case scenario appeared to be happening
when the Court of Justice was faced with its first challenge by a disappointed
man to the refusal of appointment under the Bremen Land positive action
law. The applicant in Kalanke argued that his (EC) right to equality
was infringed when he and a female co-worker applied for a promotion to the
post of section manager within the public service of the City of Bremen. A tiebreak
situation emerged, because it was decided that the two applicants were equally
qualified for the post, and accordingly the female applicant was given preference
in accordance with the Bremen law. This provided that ‘in the case of an
assignment to a position in a higher pay, remuneration and salary bracket, women
who have the same qualifications as men applying for the same post are to be
given priority if they are underrepresented.’ This was a radical variant
of the tiebreak and preference rule, because underrepresentation was defined
at 50 per cent and because it did not contain an explicit hardship clause
allowing the balance to be tipped back in favour of men where circumstances
required this. In answer to questions posed by the national court about the
relationship between this rule and the EC equal treatment guarantee, the Court
found that applying the strict quota rule would be unlawful discrimination against
the man because it was incompatible with the EC guarantee of equal treatment.
It reached this conclusion notwithstanding the strong majoritarian and (national)
constitutional legitimacy of the measure (agreed within regional and national
legislatures, accepted as lawful under the German constitution). The Court was
unable — or unwilling — to bring the Bremen clause within the scope
of the limited Article 2(4) exception for equal opportunity measures. Showing
powerfully the interaction between the Court’s role as legal institution
and its wider environment, there followed a strong negative reaction to the
Court’s judgment in Germany (and indeed elsewhere) — where affirmative
action measures have become very much an accepted part of equal opportunity
policies, and many public and private interests and groups including local and
regional women’s bureaux, trades unions, and other groups have invested
considerable energy in attempts to enshrine positive action into national and
regional laws. The Court’s ruling was felt to be insufficiently respecting
of national and regional policy choices, and difficult to reconcile with the
principle of subsidiarity (Article 5 EC, after renumbering) which should precisely
protect the autonomy in such matters of sub-units of the European Union. Measures
were proposed to change the Equal Treatment Directive to ensure that at least
the softer variants of national affirmative action programmes were safe from
the scrutiny of the Court of Justice (perceived now to be a negative influence,
after so many years of being held up as the great hope of liberal rights-based
feminism). More dramatically, agreement was reached in the Amsterdam Intergovernmental
Conference to amend the Treaties themselves to protect equal opportunities measures
in terms highlighted above. A new paragraph 4 was added to Article 141, extending
its reach into equal treatment generally, and elevating the status of equality
of result or outcome, at the expense of ‘mere’ equality of opportunity:
‘With a view to ensuring full equality in practice
between men and women in working life, the principle of equal treatment
shall not prevent any Member State from maintaining or adopting measures
providing for specific advantages in order to make it easier for the underrepresented
sex to pursue a vocational activity or to prevent or compensate for disadvantages
in professional careers.’
In a Declaration attached to the EC Treaty, the Conference directed
the Member States in taking such positive action measures to ‘aim at improving
the situation of women in working life.’ These developments should be seen
in the light of the inclusion of the Article 3(2) EC mainstreaming provision.
It is worth recalling that the ‘women’s lobby’ is noticeably
more organised and more closely keyed into the decision-making centres at national
and supranational levels than almost any other social movement within the EU.
Certainly, it demonstrated an enviable capacity to translate its objections
to the Kalanke judgment (and one should note, of course, the extent to
which the debate on affirmative action has divided rather than unified feminist
and anti-racist movements in the United States) into concrete proposals then
adopted at the highest level in the EU. Perhaps it was in response to these
types of reactions that when the Court was faced shortly after the Amsterdam
agreement with another affirmative action case — but this time involving
the more common variant of affirmative action legislation which included a hardship
clause to protect the interests of men finding themselves in specific problematic
circumstances — it concluded that such a measure did not conflict
with the EC guarantee of equal treatment. Thus, in contrast to the negatively
worded Opinion of Advocate General Jacobs in the Marschall case, the
Court’s rhetoric in its judgment was markedly changed from the formalism
of Kalanke. It reminded its readers that:
‘… even where male and female candidates are
equally qualified, male candidates tend to be promoted in preference to
female candidates particularly because of prejudices and stereotypes concerning
the role and capacities of women in working life and the fear, for example,
that women will interrupt their careers more frequently, that owing to household
and family duties they will be less flexible in their working hours, or
that they will be absent from work more frequently because of pregnancy,
childbirth and breastfeeding. For these reasons, the mere fact that a male
candidate and a female candidate are equally qualified does not mean that
they have the same chance.’
This is an example of a statement of principle contained in a
judgment of the Court which is not strictly necessary to support the logic of
the reasoning, but is clearly included as a ‘political signal’. Perhaps
in deference to a sense of the exclusion of female citizens from the full enjoyment
of membership within the polity, the Court concluded in favour of a restriction
in the scope and reach of EC law and the EC constitutional guarantee of formal
equality. It did not transmute that guarantee at EU level into a guarantee of
substantive equality. Rather, it pulled back the reach of EC law, in
order to allow German women (or, better, women employed in Germany) to
enjoy the benefit of their struggles for equality at national and regional
level and therefore their enjoyment of the benefits of membership at that level.
The Marschall case, therefore, provides nothing positive in the sense
of delivering the promise of equality through EU citizenship for those arguing
in favour of affirmative action in other Member States, although together
with Kalanke the saga of positive action in the Court of Justice must
be seen as indirectly contributing to the strengthening of a concept of substantive
equality in the EC Treaty through the Treaty of Amsterdam itself. However, yet
again the politics of gender have become the politics of subsidiarity and sovereignty,
as the Court resiled from the severity of the Kalanke judgment and softened
its overall stance by reference to a statement of general principle about the
disadvantages which even well qualified women face in the labour market and
by opening the degree of discretion enjoyed by national and sub-national legislatures.
The Court confirmed the opening for subnational legislatures to develop positive
action policies in accordance with these principles in its third foray into
this area, the case of Badeck. It examined the compatibility of the positive
action laws of the German Land of Hesse, in a case referred by the State
Constitutional Court of Hesse after a direct constitutional challenge to the
legality of the relevant law was mounted by a group of members of the Hesse
legislature. In other words, the case arose as a general issue, not because
of a claim of a specific aggrieved individual who had been passed up for promotion.
In relation to every aspect of the challenge, which concerned such matters as
quota systems for the appointment of women in posts or grades where they were
underrepresentated (where underrepresentation is prima facie defined
as < 50%) or guaranteed training places or interviews for qualified women,
the Court concluded that the relevant provisions were drafted with sufficient
suppleness not to fall foul of Article 2(4). It did not need, therefore, to
interpret the effects of Article 141(4), which remains an open question. In
particular, in relation to the quota system the Court found that the rules as
drafted guaranteed that candidatures are subject to an objective assessment
which takes account of the specific personal situations of all candidates. The
result could, therefore, be seen as a triumph for drafting. The pressure of
further pending cases, however, demands that the issue should be dealt with
as a matter of (equality) principle within the EU institutional system, rather
than as a by-product of the politics of a multi-level governance system with
a dispersed pattern of sovereign powers and weak legitimacy at the supranational
level. Badeck appears to come closer to such a resolution than the case
of Marschall, perhaps because of the more general nature of the review
which the Court was able to undertake in the context of the reference made by
the national court. There is a similar example of the invocation of general
principle by the Court in the case of Hill and Stapleton.
The case concerned the entitlements of part-time workers to convert to full-time
to pay increments on a yearly basis. Should they put onto the same point on
the full-time pay scale which they would have been on if they had worked full-time
continuously? Or are they only given recognition on the full-time pay scale
for the full-time equivalent of their part-time work, e.g. two yearly increments
in respect of four years half-time working? The Irish public service scheme
in question placed part-time workers at a disadvantage by placing a previously
job sharing employee who converted to full-time work at a lower level on the
scale than she had previously occupied on the job-sharing scale, and below the
equivalent level for a worker who had worked full-time for the same number of
years. The Court reasoned that this was a form of indirect discrimination as
it overwhelmingly affected women rather than men, and thus placed the onus on
the Irish Revenue Service to demonstrate that the criterion of service which
it was using which related to actual hours worked in fact was justified by objective
factors unrelated to any discrimination based on sex. Significantly, the Court
also invoked a higher level of ‘principle’:
‘Community policy in this area is to encourage and,
if possible, adapt working conditions to family responsibilities. Protection
of women within family life and in the course of their proessional activities
is, in the same way as for men, a principle which is widely regarded in
the legal systems of the Member States as being the natural corollary of
the equality between men and women, and which is recognised by Community
law’.
The principle of adaptability (of the working environment
to the family) thus invoked seems in broad terms one which is sensitive
to a gender analysis, although one could quibble with the detail. McGlynn chastises
the Court for its maternalist thinking in focusing upon the responsibilities
of women, and indeed in the previous paragraph of the judgment the Court
assumes that those (83% of the total) who choose to job share in order to combine
‘work and family responsibilities’ are doing so because this will
‘invariably involve caring for children’. This ignores the
tremendous responsibilities taken by many women for caring for elderly relatives
and indeed spouses. But the slipperiness of such concept, and the inconsistency
of the Court’s approach to reasoning its judgments comes through if one
compares Hill and Stapleton with the more recent case of Gruber.
Here the Court rejected an argument from the applicant that resigning her post
in an undertaking because of the absence of adequate childcare arrangements
was the equivalent of one of the ‘aggravated’ reasons for leaving
which gave rise to an increased termination payment. The Court’s reasoning
is somewhat perfunctory, and it does not invoke the principle which appeared
to carry weight in Hill and Stapleton. The contrast between the two approaches
is sharp. The language used is rather unfortunate (at least in English), because
the statutory reasons which can indeed form the basis for the higher payment
are described (presumably as a term of art) as those wich are ‘important’.
In terms of individual decision-making frames regarding responsibilities for
childraising, great importance is undoubtedly ascribed to such matters by almost
all of those involved in childcare decisions. Re-using the terms employed by
the Court to summarise the statutorily support ‘important’ reasons,
one could say that ‘no worker can reasonably be expected to remain at work
if he or she is not satisfied with the childcare arrangements which he or she
has made’. While this matter is not to be regarded as necessarily even
a partial responsibility of the employer such as is the case with most of the
‘important’ reasons (although in systems with widespread socialised
childcare and high rates of female engagement in the labour market that point
could be argued), an analogy could have been drawn with ‘unfitness to work’
which is one of the reasons for awarding the higher rate of termination payment
which is unrelated to the conduct of the employer. The Court does not embark
upon an attempt to persuade the national court to interpret the national provisions
in a way which is in sympathy with the relevant EU policies, including the family-friendliness
of work environments. It can be concluded from this review that there is indeed
some degree of inconsistency in the way the Court sometimes does and sometimes
does not invoke wider principles to buttress arguments about ‘equality’,
which can in turn feed different ‘formal’ or ‘substantive’
constructions of the term. Are Mancini and O’Leary right to suggest that
it is wrong to expect the Court to invoke such wider principles more frequently?
Indeed, when they are invoked, is it always in the service of bringing gender
to the centre of the analysis? Cases such as Schröder and indeed
Marschall would suggest not. The evidence presented here seems to suggest
that the Court often deploys legal argument including the invocation
of equality and related principles such as to demonstrate more sensitivity to
the demands of governance in a complex multi-level system than to indicate great
sympathy towards a progressive or feminist agenda promoting the relevance of
using gender as a tool of analysis to help tease out fundamental societal dilemmas
about the relationship between care and work.
C The Court as political institution
It can be argued that the Court of Justice both develops and
responds to the changing agendas which are inherent in the politics of the EU.
The point here is not to suggest that there were no ‘politics’ visible
in the cases discussed in the previous section, but to pay separate attention
to peculiarly ‘political’ questions about chains of causation and
the capacity of institutions to shape each other’s behaviours. Here we
can bring to centre stage the role of the Court in a wider institutional and
political system. In practice, however, we can deal with this issue much more
briefly than the previous question. Unsurprisingly, the issue density in terms
of case law and legislative/Treaty framework, combined with the interactions
of dynamic actors including the Court of Justice, some national courts, and
social movements or organisations which have promoted litigation strategies,
which together characterise the field of sex equality law and policy, have attracted
the attention of some political scientists interested in assessing the precise
role of the Court’s ‘judicial politics’ in promoting increased
‘legal integration’. This is commonly
defined as the degree to which there is compliance with EU law on the part of
Member States and their political and legal authorities, and the general degree
of ‘authority’ ascribed to EU law and the pronouncements of the Court
of Justice. Alter and Vargas have argued that this process of legal integration
is also transforming the national political process, in so far as the
development of EU sex equality law has shifted the domestic balance of power
in favour of equality actors, especially the Equal Opportunities Commission
in the United Kingdom, which has pursued a relatively successful litigation
strategy. Thus far, they have developed a hypothesis about the use of EC law
as a tool by national groups which can explain cross-national variation in the
impact of the Court’s case law. On the other hand, shifting the focus to
national groups themselves, they acknowledge that more research needs to be
done to find out ‘how actors determine their interests in order
to understand when actors will see an interest in behaving in ways that
intentionally or unintentionally promote integration.’ More radically,
they also acknowledge the need to ‘open up the possibility that actors
following their interests might contribute to disintegration rather than integration.’
In contrast, Tesoka likewise argues that the impact of EU judicial politics
on modes of governance in this field is influenced by domestic mobilisation,
which in turn depends upon the degree of openness of the national political
and judicial systems. Common to both those approaches is a rather static notion
of the relevant ‘judicial politics’. Tesoka posits, simply, that ‘the
judicial activism of the European Court of Justice is steering the Community
legal order in a supranational direction’. Certainly, it is unsurprising
that no specific attention is paid to the particular ‘politics of gender’
(or absence thereof) which has influenced the reasoning and judgments of the
Court of Justice. The attempt is being made to explain the interaction between
different actors in terms of processes of integration and disintegration within
a multi-level system, not to uncover or analyse gender issues. Yet as the previous
discussion has shown interpreting the Court of Justice in a field such as sex
equality law is a minefield in itself. Even if the Court is not moved by any
collective feminist vocation, there are elements of the principles which it
invokes which inevitably carry a certain type of political baggage in terms
of the types of political projects which feminists typically espouse. Those
are precisely the elements which a litigation strategy might wish to harness,
whilst downplaying those aspects of the judicial politics which are clearly
more about issues of sovereignty or subsidiarity, as we have seen in our analysis.
Something closer to that vision is brought out by as Ostner and Lewis who highlight
the painful phenomenon — in relation to the operationalisation of equality
claims — of the ‘two needles’ eyes’. Not only must a gender
equality claim demonstrate a sufficiently close link to paid employment, but
it must also be generated and instrumentalised in the context of a sufficiently
receptive and favourable national environment, comprising a framework of legislation,
case law and other rules. This appears to give the impression that the study
of national courts and the interactions with national politics has been the
exclusive province of political scientists. This is certainly not the case.
Wallace, for example, would emphasise the relevance of legal culture in for
reception of EU law, a point skipped over by Tesoka. Wallace’s is the approach
of a comparative lawyer, who in turn does not deny that there are undoubtedly
other ‘non-legal’ factors which structure the interactions. Kilpatrick,
in turn, concentrates upon dialogues between national courts and the Court of
Justice and ‘European communities of courts’, arguing that her empirical
findings can best be located within historical institutionalist perspectives
upon EU governance. The point here is not to demonstrate that one approach is
right and the other is wrong, but to highlight the plurality of factors some
of which may be causes and some of which may be effects, or which might perhaps
better be viewed as operating in a dynamic circular and mutually reinforcing
manner. As yet, as Alter and Vargas readily acknowledge and Kilpatrick warns,
they are as yet insufficiently charted. Moreover, it is clear that issues of
gender interpretation are merely coincidental to the endeavour of explaining
these institutional interactions and dialogues. Sex equality law is, on this
reading, merely an area characterised by a suitable base for empirical study.
Other than the importance attached to non-state actors such as lobby groups
and the fact that it is an area exhibiting a number of diverse stakeholders
whose interests are marked by commitment to a principle and a politics rather
than financial expediency (as well as a number of latter, such as employers
and sometimes Member States protecting financial interests of the welfare benefits
system or the pensions system), gender is a coincidental factor. The gendered
division of labour, for example, is clearly at issue in numerous cases which
come before the national courts and the Court of Justice. So far, however, as
the concern is the position of these courts in the multi-level EU governance
system, it is largely irrelevant what they actually make from those put before
them.
D Conclusions
It is clear from the discussion in this section that there
is in large measure an underlying consistency between interpretations of the
role of the Court of Justice which focus on its legal and political roles. As
Unger has observed: ‘The institutional and ideological constraints upon
the judicial role in a democracy and the effort to expound the law as connected
principle and policy seem to reinforce and to justify each other.’ In the
forefront of Unger’s mind is the American judicial system; the point seems
apt also for the EU judicial system. The previous section would seem to have
given considerable succour to the view that the task of ‘interpreting’
the Court of Justice in the context of sex equality law must take as its centrepiece
the various aspects of the ‘institutional economy’, and that indeed
the injunction in Article 220 EC to ‘apply the law’ is a powerful
shaping factor. There appears to be a powerful structural bias in the EU system
which prevents gender analysis becoming an autonomous shaping factor in the
evolution of the law and policy. This is to a large extent a feature that it
will share with any liberal legal order. But the particular constraints imposed
upon the Court of Justice in its ongoing constitutional dialogues with national
courts means that at present it does not have a free hand to follow, for example,
the lead of the Canadian Supreme Court in articulating and applying a substantive
equality principle through its interpetation of the 1982 Charter of Rights.
Thus what might be termed the most ‘progressive’ of the Court’s
decisions represent a combination of setting EU standards which the national
systems must follow and restricting the reach of EU law in order that were national
laws themselves are more developed, they will in fact prevail. Judgments in
the sex equality field undoubtedly raise contested issues in the EU context,
which deserve transparent consideration and demonstration as Unger suggests.
Our review suggests, however, that the contestation is as often about the question
of integration as it is about the dimensions of equality.
VI Interrogating the
Court of Justice
The focus shifts in this final substantive section from ‘interpreting’
to ‘interrogating’. It will ask two — as yet — hypothetical
questions shaped by approaches to adjudication which step away from the ‘classical-plus’
model of the institutional environment of the Court of Justice which underpinned
the previous section. The questions draw upon aspects of the policy and institutional
contexts, as well as the possibilities of gender analysis generated within feminist
scholarship, higlighted in the earlier sections of the paper. They are variants
upon ‘asking the gender question’. First, we shall ask whether the
predominantly masculine composition of the Court of Justice (and indeed the
Court of First Instance) is likely to make a difference to judicial outcomes
and second, we shall consider ways of reframing legal disputes in order to bring
gender questions to the forefront of consideration in a way which extends the
range of voices and points of view which can be heard. In relation to the second
question, in order to make the enquiry somewhat less hypothetical a number of
examples from existing case law are used. However, to make the point about the
challenges posed by what might be involved if gender is ‘centered’
in relation to the role of the Court of Justice, cases from outwith the field
of sex equality law will be used. Intuitively, gender-balanced public institutions
would seem to suggest the presence of a fair and equitable society involving
a broadly ‘balanced’ (in gender terms) division of labour and resources.
In truth, the issues of representation and the tensions between representation
and participation have often divided feminists as the search has continued for
the definitive answer to the question ‘why should it matter who our representatives
are?’. In the first place, difficulties have
arisen because of differences within feminist theory and feminist praxis over
the desirability of representative versus participatory forms of political engagement.
As women have been a historically excluded category within many political systems,
arguments have emerged both for inclusion within the existing polis and
for diversion away from the formal structures of conventional representative
politics into forms of informal participatory politics. One of the inevitable
tensions in that context is that between individual and group. To support women’s
representation as women, the strongest arguments can be drawn from ‘justice’
and a type of commonsense assumption that public assemblies should be expected
to evidence parity or near-parity, the specificities of ‘women’s interests’
and the historical failure to heed these within male-dominated public bodies,
and the need to revitalise democracy, suggested likewise by the tension between
representation and participation identifed here. Arguments about the composition
of the judiciary differ somewhat. Judges do not ‘represent’ the people
in the conventional sense. They sit in judgment, exercising — within a
democracy at least — a form of delegated power on behalf of the people.
In a constitutional system, moreover, they have a particular role to play in
ensuring the balance and separation of powers, and the control of the legislature
and the executive according to the constitution itself embodying the rule of
law. Along with other public figures, of course, they have an important ‘role
model’ function, and in that sense the type of commonsense assumptions
mustered in the previous paragraph must be equally applicable. In the national
context — but less so one might surmise in the context of a more isolated
supranational court like the Court of Justice — women judges certainly
represent more specialist role models vis-à-vis the legal profession.
To suggest, however, that the exercise of judgment would be different with women
judges is an altogether more controversial suggestion, because it steps into
historically contested territory about sexual difference where to suggest that
women reason differently to men seems to suggest an essentialised notion of
sex which can be as easily used to restrict women’s freedom as it is to
assert that historical structures of disadvantage in the labour market, the
household and public life require transgression and dismantlement. McGlynn canvasses
the case for a different ‘feminine’ style of judgment coming from
some women, and concludes that the evidence from academic studies is equivocal.
It seems difficult, therefore, to escape the ‘nature’ question. She
does so, however, by focusing on the issue of diversity rather than directly
upon the role or experience which the women judge as such will bring. In other
words, the case is made for ‘a judiciary which is drawn from a wider range
of sexes, backgrounds and ethnicities [which] will bring different experiences
to bear on its judgments’. Such a shift responds also to the types of concerns
brought to the fore by JAG Griffith’s celebrated studies of the ‘Politics
of the Judiciary’, in terms of the narrowness of the range of backround
and experience of the British higher judiciary and the consequent results in
terms of judicial politics and ideology. Reforms to the selection process would
be needed, almost certainly, to change in a radical way the composition of the
Court of Justice, if only to overcome the myth of ‘the best man for the
job’ which so often results in perpetuating male domination of highly elite
institutions where the pool for selection as well as the number to be selected
is both very small and highly visible. Because the selection of the Court is
not a collective process, the type of pressure exerted by Commission President
(then elect) Romano Prodi on the Member States in 1999 to ensure that the number
of women Commissioners at least matched that in the previous Commission cannot
occur. Another associated reform might examine the possibilities for promoting
the use of gender-neutral language in judicial discourse, although in a multilingual
court this is an even greater minefield than it normally is at national level.
Issues of composition, however, can only take the debate so far. For the issue
may be, as Minow points out, about ‘reason’ rather than composition.
Her concern is ‘points of view’, and the relationships between power,
privilege and seeing the other side. She suggests that ‘the more powerful
we are, the less able we are to see how our own perspective and the current
structure of our world coincide.’ The challenge, therefore, is the construction
of legal disputes and the recognition of points of view. For ‘otherwise,
outsiders who become insiders simply define new groups as "other"’.
Instead she argues for highlighting the point of view of people labelled as
"different" and ‘generating vivid details about points of view
excluded from or marginalized by particular institutions is another.’ She
concludes:
‘Seeking out and promoting participation by voices
typically unheard are also crucial if equality jurisprudence is to mean
more than enshrining the point of view of those sitting on the bench. The
concerted and persistent search for excluded points of view and the acceptance
of their challenges are equally critical to feminist theory and practice.
Otherwise, feminists will join the ranks of reformers who have failed to
do more than impose their own point of view.’
This suggests the value of the search for ways of framing into
such legal disputes, as they crystalise before the courts, something more than
the legal reconstruction of the categories deemed — by reference to the
law’s own system of definition — to be relevant. One possible approach
is that suggested by ‘gender mainstreaming’ with its ‘systematic
integration of the respective situations, priorities and needs of women in all
policies’ and its attempt to achieve ‘equality’ ‘by actively
and openly taking into account, at the planning stage, [the] effects [of policies]
on the respective situation of women and men in implementation, monitoring and
evaluation.’ The danger with mainstreaming, of course, is that with such
apparent inclusiveness in fact radical challenges to the status quo may lose
their capacity to disrupt received ideas about power and policy. It may involve
as much ‘framing out’ of interests as ‘framing in’. It could
involve the co-option of feminist ideals into a soft-focus family-friendly world
in which choice and freedom are merely rhetorical devices rather than real experience.
Does mainstreaming provide any better way of getting to the heart of a policy
problem, simply because of its claim to inclusiveness? It may detract, in fact,
from a better understanding of the policy problem because it suggests, immediately,
that the gender issue is dealt with by index. On the contrary, as the ‘What’s
the Problem’ approach to policy analysis advocated by Bacchi highlights,
the disputes over policy initiatives not only distinguish between those in favour
of and those against a particular policy, but also help in ‘constituting
the shape of the issues to be considered.’ For example, issues about gender
and development should not be assumed straightforwardly resolved because the
boxes on the checklist of mainstreaming have all been ticked off. On the contrary,
policymakers should always to question what representations have been assumed
in the presentation of a policy issue and what alternatives to taken-for-granted
solutions there might be. Applying these ideas to the judicial forum is, thus
far, a rather hypothetical exercise. On the other hand, as an academic endeavour
of reconstruction it has the advantage of bringing to the centre of the dispute
the social or economic issue to be adjudicated upon, rather than allowing the
dispute to be triangulated solely by reference to the received categorisations
of legal orders, such as historical public/private law divides. One such bifurcation
in the context of EU law is the separation between sex equality law and law
the relating to the free movement of persons. Ackers has contributed to the
literature an important empirical study which challenges received opinion about
women’s experience of migration — at least within the European
Union — and thus raises new questions about the effects of the free movement
rules which are the EU’s contribution to regulating the socio-economic
phenomenon of intra-EU migration. The study explodes certain myths about the
rate of female migration, as women constitute just under 50% of all EU migrants,
and about the assumption that they primarily migrate to join male breadwinning
partners. The interaction of the reality of migration with the free movement
rules and their historic focus upon economic status, with different ‘classes’
of rights according to status, is equally important. These provisions can be
seen as thoroughly ‘gendered’. Certainly, the focus on participation
in the labour market as conferring legal status neatly matches the predominant
concerns of the framework of sex equality law which we have already examined
in this paper. On the other hand, the establishment of a status of Citizenship
of the Union by the Treaty of Maastricht (Articles 17-22 EC after the Treaty
of Amsterdam) could be said to disrupt some of these categories, especially
as it appears, at first sight, to confer a universal freedom of movement (Article
18). Closer inspection reveals, however, that this provision is ‘subject
to the limitations and conditions laid down in this Treaty and by the measures
adopted to give it effect.’ It is in this context that we need to consider
the case of Martínez Sala. The Court held that a Spanish national
who was longterm resident in Germany — although on what precise basis her
lawful residence in that country could be deduced was not entirely clear —
could rely upon the non-discrimination principle in Article 12 EC as the basis
for claiming equal access to a Germany child-raising benefit for her new born
child. In economic terms her status might best be categorised as marginal to
the labour market, but not wholly excluded. It was many years since she had
worked in Germany, almost certaintly as a result of childcare responsibilities.
The Court concluded that she could not be obliged to produce a residence permit
in order to obtain the benefit, when nationals merely had to prove that they
were permanently settled in Germany. Moreover, the Court held in effect that
it would make no difference to her entitlement whether or not she might eventually
be found by the national court to be either a worker or an ‘employed person’
under Community social security regulations, as was possible on the constructions
of ‘worker’ and employed person which it gave. The novelty of the
Court’s judgment lay, however, in its invocation of Citizenship of the
Union, notably Article 17(2) which ‘attaches’ to the citizen the rights
and duties existing under the EC Treaty. Martínez Sala could claim equality
of treatment, the Court found, even if she was solely dependent upon welfare
and could bring herself within the personal scope of Community law by no other
means than that she is a Union citizen resident in another Member State. The
only material condition was that the benefit which she claimed must fall within
the scope of EU law. The Court of Justice found that it was within that scope
using its own earlier interpretation of a legislative measure which had expressly
conferred social advantages on (economic) migrants and their families. One interpretation
of the Court’s approach to the intersection of the material and personal
scope of EU law, in combination with the non-discrimination principle, is that
it gives something close to universal right of access to all manner of welfare
benefits to all those who are Union citizens and who are lawfully resident in
a Member State. This (orthodox) interpretation of the case is taking for granted
the Court’s reading of the categories which frame the case, i.e. citizenship
and free movement rules. Consider, instead, the approach of Moebius and Szyszczak.
For them, Martínez Sala was not the opening of the new chapter
marked ‘citizenship’, but the continuation of a process of historic
exclusion, in which the Court has refused to recognise ‘care work’
as a ‘proper’ form of work for the purposes of interpreting the Treaties.
Its failure is as acute in the context of sex equality law as it is in relation
to the free movement rules, where its interpretation of the notion of worker
includes only those engaged in some form of ‘economic’ activity. Only
that will generate a conception of citizenship which is not the narrow legalistic
formulation of the Treaty, but one rooted in the development of social rights
as well as legal market rights. The second example addresses the question of
the effects of policies (and legal rules). In 1996 the United Kingdom the annulment,
by means of a judicial review action brought under what is now Article 230 EC,
of the Commission’s decision to fund a series of projects aimed at combatting
social exclusion within the EU. The context in which the action was brought
was the failure of the Council — because of opposition by the UK and Germany
— to agree a programme of work for 1994-1999, including financial support
for projects, following on from three earlier programmes aimed at alleviating
some of the effects of poverty. The effect of the UK’s challenge was to
cast doubt upon all manner of funding for social exclusion projects, without
doubt having a significant effect upon the ‘third sector’ of voluntary
organisations, non-governmental organisations, and church groups which have
come to rely upon programmes of EU funding to support their activities. It put
‘a spanner in the works’, as it were. In view of the evidence on women’s
pay in comparison to men’s, and the prevalence of female-headed single
parent households, there can be little doubt about the impact of such actions
upon women in particular. Of course, the issue of the Commission’s role
in implementing the EU budget and the need for a so-called ‘dual legal
basis’ for spending involving an entry in the budget and secondary legislation
authorizing the expenditure is no mere technical and dry issue. The resignation
of the Commission in March 1999 under the shadow of strong accusations about
fraud, mismanagement of budgets and nepotism is ample evidence of that point.
In the event, the Court found for the UK, concluding that the Commission lacked
the competence to commit the expenditure under the budget as per its plans.
Its judgment comprises technical legal argument — which is hardly surprising.
The question remains: were a gender mainstreaming approach to be adopted in
such circumstances, would a different approach (e.g. to the expeditiousness
with which the action was heard thus limiting its effect) be adopted?
VII Conclusions
The approach of this paper has been hybrid. It is part description
and analysis, part speculation upon possible alternative arguments, and part
reflection upon the relevance of gender to the evolving EU polity. In relation
to the analysis of sex equality law, the point should be re-emphasised that
the Court’s position within a semi-federal system of multi-level governance
is as significant to its ‘politics’ as its sometimes supposed feminist
credentials as promoting a relatively progressive framework of discrimination
provisions. To bring out this point, the dual vision of a Court with a legal
and political role to play in the EU governance system has been especially
important. In EU governance work the Commission is often characterised as a
‘purposeful opportunist’. The description seems equally apt for the
Court of Justice in the context of ‘gender’, as it has cloaked itself
in something akin to a feminist cloak almost always only where some gain can
be obtained in termed of reinforcing its own legitimacy within the system. Elsewhere,
the bare realities of legal interpretation have tended more often than not to
reassert themselves, leaving the highly formal legacy of an equal treatment
principle based on notions of comparison rather than structural disadvantage
and societally based inequity.